Dismissed

Aljo Joseph v. Dhanalakshmi Bank Ltd.

Kerala HC6 Sept 2021WP(C)/11003/2021

Case brief

AI extract

What is this about?

The Kerala High Court disposed a writ petition challenging an NCLT order in an insolvency matter. The Court held that since a statutory remedy under the IBC 2016 exists, the writ petition was not maintainable. It allowed the petitioner to seek delayed condonation for an appeal under Section 61. An application by SBI for impleadment was dismissed.

What did the court decide?

The interim stay order continues for 30 days; the writ petition is disposed of to allow the petitioner to file an appeal within 30 days under Section 61 of the IBC 2016.

Aljo Joseph Vs Dhanalakshmi Bank Ltd. — Insolvency and Bankruptcy | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

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MONDAY, THE 6^TH DAY OF SEPTEMBER 2021 / 15TH BHADRA, 1943 WP(C) NO. 11003 OF 2021

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PETITIONER:

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ALJO JOSEPH AGED 44 YEARS S/O. P.K.JOSEPH, PUTHUPPARA HOUSE, KIDANGOOR P.O., ANGAMALY-683572. BY ADVS. P.B.KRISHNAN V.K.PEERMOHAMED KHAN GIRISH KUMAR V.C

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RESPONDENTS:

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1 DHANALAKSHMI BANK LTD. REPRESENTED BY ITS BRANCH MANAGER, ANGAMALY BRANCH, DHANALAKSHMI BUILDING, NAICKANAL, THRISSUR-680001. 2 THE NATIONAL COMPANY LAW TRIBUNAL, COMPANY LAW BHAVAN, KAKKANAD, KOCHI-682030. 3 JASIN JOSE, 5D, SKYLINE RIVERSCAPE, THOTTUMUGHAM, ALUVA, KERALA683101. BY ADVS. SRI.C.K.KARUNAKARAN,SC,DHANALAKSHMI BANK SHRI.P.VIJAYAKUMAR, ASG OF INDIA MOHAN JACOB GEORGE - R3 M.JITHESH MENON P.V.PARVATHY (P-41) REENA THOMAS NIGI GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO.11003/2021

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P.V.KUNHIKRISHNAN, J

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W.P.(C)No.11003 of 2021

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Dated this the 6^th day of September 2021

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JUDGMENT

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The above Writ petition is filed with

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following prayers:

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“a) issue a writ of certiorari or other appropriate writs, directions or orders calling for the records leading up to Exhibit P6 and quash the same.

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b) issue a writ of mandamus or other appropriate writs, directions or orders restraining the 3^rd respondent from proceedings further with Exhibit P6;

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c) grant such other reliefs as this Honourable Court may deem fit, just and proper in the circumstances of the case.

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d) award cost of these proceedings.”

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2. The main prayer in this writ petition is

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a challenge against Ext.P6 order passed by the

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National Company Law Tribunal(NCLT), Kochi

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Bench, Kerala. Admittedly Ext.P6 can be challenged by filing an appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016.

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Eventhough the learned counsel for the

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WP(C) NO.11003/2021

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petitioner submitted that Ext.P6 is passed without jurisdiction and raised several other contentions, according to me, the same need not be considered at this stage. It is settled by several decisions of this Court and the Apex Court that, the writ petition need not be entertained against orders of NCLT, when there is a statutory remedy available as per the Insolvency and Bankruptcy Code, 2016. (See the judgment in Embassy Property Developments Private Limited v. State of Karnataka and others [(2020)13 SCC 308], Sesh Nath Singh and Another v. Baidyabati Sheoraphuli Co-operative Bank Ltd. And Another [2021 SCC Online SC 244], Sulochana Gupta and Another v. RBG Enterproses Private Ltd.[2020 SCC Online Ker 4153] and the judgment dated 02.07.2021 in W.P.(C)No.8257/2021) . Of course, in certain circumstances the writ court

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can interfere. But in the facts and circumstances of this case, I think this writ petition under Article 226 of the Constitution

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WP(C) NO.11003/2021

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of India need not be entertained. All the contentions of the petitioner in this writ petition are left open. They can file an appeal before the appellate authority as per Section 61 of the Insolvency and Bankruptcy Code, 2016 and raise all the contentions raised in this writ petition. Since, the writ petition is pending before this Court from 03.05.2021 and there is

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an interim order passed by this Court on 19.05.2021, which is in force even now, I think a breathing time can be given to the petitioner to file an appeal before the appellate authority.

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3. This Court actually stayed Ext.P6 order based on a submission from the 1^st respondent.

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The order of stay passed by this Court on 19.05.2021 is extracted hereunder:

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“The learned counsel for the petitioner has made available a letter dated 19.05.2021 of the 1^st respondent addressed to the Managing Director of M/s.Orma Marble Palace (P) Ltd, of which petitioner is a Director informing that the bank has received a sum of

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WP(C) NO.11003/2021

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Rs.1,60,00,000/- (One Crore Sixty Lakhs Only) towards the loan settlement and that the final OTS is under consideration.

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In view of these developments, there shall be a stay of further proceedings pursuant to Ext.P6 for a period of two months.”

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4. The learned counsel for the 1^st

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respondent submitted that the amount is already received and the bank already approached the Tribunal for withdrawing the writ petition. The learned counsel for the petitioner submitted that there is some legal difficulties in withdrawing the petition.

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5. An impleading petition is filed by the

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State Bank of India as I.A.No.1/2021 raising several contentions. I think that impleading petition need not be considered at this stage.

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If there is any grievance to the State Bank of India, they can approach the Tribunal in

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accordance to law. According to me, the impleading petition need not be considered and therefore, I.A.No.1/2021 is dismissed.

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WP(C) NO.11003/2021

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6. Since this writ petition was filed within 30 days from the date of receipt of the impugned order in this case and since an interim order also passed by this Court, I think the appellate authority can accept the appeal without a delay condonation petition, if the same is filed within 30 days. I am passing such an order because the petitioner was pursuing this writ petition with bonafides. Therefore, I think this writ petition can be disposed allowing the petitioner to approach the appellate authority.

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Hence, this writ petition is disposed in the following manner:

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i) The interim order dated 19.05.2021

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which is in force even now will continue for a period of 30 days from today.

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ii) The petitioner is free to file an appeal against Ext.P6 order before the appellate authority as per Section 61 of the Insolvency and Bankruptcy Code, 2016 in the meanwhile.

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WP(C) NO.11003/2021

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iii) If an appeal is filed by the petitioner within 30 days from today, the appellate authority will treat it as an appeal within time and consider the same in accordance

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to law.

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iv) All other contentions raised by the

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petitioner in this writ petition are left open.

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Sd/-

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P.V.KUNHIKRISHNAN JUDGE

WP(C) NO.11003/2021

APPENDIX OF WP(C) 11003/2021

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PETITIONER'S EXHIBITS

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EXHIBIT P1	TRUE COPY OF THE DEMAND NOTICE DATED 8.1.2018 ISSUED BY THE 1ST RESPONDENT UNDER SECTION 13(2) OF THE SECURITISATION ACT.
EXHIBIT P2	TRUE COPY OF THE APPLICATION IN IBA/41/KOB/2020 FILED BY THE 1ST RESPONDENT UNDER SECTION 7 OF IBC BEFORE THE 2ND RESPONDENT.
EXHIBIT P3	TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER TO EXHIBIT P2 APPLICATION.
EXHIBIT P4	TRUE COPY OF THE REJOINDER FILED BY THE 1ST RESPONDENT.
EXHIBIT P5	TRUE COPY OF THE REQUEST FOR ONE TIME SETTLEMENT SUBMITTED BY THE PETITIONER DATED 5.2.2021 OFFERING TO PAY AN AMOUNT OF RS.140.00 LAKHS PAYABLE FINALLY BEFORE THE 31ST OF MARCH 2021.
EXHIBIT P6	TRUE COPY OF THE ORDER DATED 9.4.2021 IN IBA/41/KOB/2020.
EXHIBIT P7	TRUE COPY OF THE NOTICE DATED 21.4.2021 ISSUED BY THE 3RD RESPONDENT.

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RESPONDENT EXHIBITS

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EXHIBIT R4(A) TRUE COPY OF THE CLAIM SUBMITTED BY THE BANK DATED 16/04/2021.

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//TRUE COPY//

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PA TO JUDGE

Aljo Joseph v. Dhanalakshmi Bank Ltd.

Case brief

What is this about?

What did the court decide?

Aljo Joseph v. Dhanalakshmi Bank Ltd.

Case brief

What is this about?

What did the court decide?

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