Disposed

P.Jayagovind v. Bijoy Prabhakaran Pulipra(Resolution Professional)

Kerala HC15 Feb 2021WP(C)/1962/2021

Case brief

AI extract

What is this about?

The High Court confirmed an interim order directing the National Company Law Tribunal to hear a petitioner's miscellaneous application challenging claim rejection by the Resolution Professional before finalizing the resolution plan, noting delays in NCLT proceedings.

What did the court decide?

Confirmed the interim order dated 25.01.2021 directing the NCLT, Kochi Bench, to hear and dispose of the petitioner's Miscellaneous Application (Ext.P9) before proceeding in related proceedings.

P.Jayagovind Vs Bijoy Prabhakaran… — 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 N.NAGARESH

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MONDAY, THE 15TH DAY OF FEBRUARY 2021/26TH MAGHA,1942 WP(C).No.1962 OF 2021(U)

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PETITIONER:

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P.JAYAGOVIND, AGED 57, S/O. GOPINATH, C-061, DLF NEW TOWN HEIGHTS, SEAPORT AIRPORT ROAD, OPP. KOCHI DOORDARSHAN, KAKKANAD, COCHIN-682 030.

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BY ADVS. SRI.DINESH R.SHENOY SRI.EBIN MATHEW SRI.P.ROHIT PREMANANDAN SHENOY

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RESPONDENTS:

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1 BIJOY PRABHAKARAN PULIPRA (RESOLUTION PROFESSIONAL) JBP & ASSOCIATES, ARTIS HOUSE, GROUND FLOOR TC-11/789(1), PLAMOODU-NALANDA JUNCTION ROAD, NANTHANCODE, KOWDIAR P.O., KERALA-695 003.

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2 THE PVS MEMORIAL HOSPITAL PVT. LTD., KALOOR, KOCHI-682 017.

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ADDL. 3 P.V.MINI, AGED 57 YEARS, D/O.P.V.CHANDRAN, RESIDING AT A-21, TRITVAM, CHATIYATH ROAD, ERNAKULAM - 682 018.

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R1-R2 BY ADV. SRI.GEORGE POONTHOTTAM (SR.) R1-R2 BY ADV. SRI.P.JINISH PAUL ADDL.R3 BY ADV. SRI.MILLU DANDAPANI

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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J U D G M E N T

~ ~ ~ ~ ~ ~ ~ ~ ~

Dated this the 15^th day of February, 2021

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The petitioner was an employee of the 2^nd

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respondent-Company. The National Company Law Tribunal (NCLT) commenced Corporate Insolvency Resolution Process of the Company. The 1^st respondent was appointed as Resolution Professional. The 1^st respondent issued notification inviting claims. The petitioner submitted a claim for `3,09,45,200/- as operational creditor.

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The 1^st respondent published a final list of creditors on 20.10.2020. The petitioner was not given any notice or heard in person before publishing the final list. The 1^st respondent rejected the claim of the petitioner holding that his claim is “excess claim”. The petitioner thereupon approached the NCLT filing MA No.177/KOB/2020 under Section 60(5) of the Insolvency and Bankruptcy Code, 2016. On 14.12.2020, as per Ext.P3, the NCLT directed the petitioner to submit

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documents sought for by the 1^st respondent within two weeks. The Resolution Professional was directed to explore all possibilities to settle the claim of the petitioner. The NCLT directed the Resolution Professional to give a reply to the petitioner before finalisation of the resolution plan.

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It is the case of the petitioner that the petitioner submitted requisite materials on 28.12.2020, before the expiry of two weeks period granted by the Tribunal. The said letter of

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the petitioner was supported by necessary documents. However, the 1^st respondent issued Ext.P5 rejecting the petitioner's application on the very next day. Thereafter, the petitioner filed Ext.P9 Miscellaneous Application before the NCLT on 05.01.2021 seeking to set aside Ext.P5. Diary number was given to the Miscellaneous Application filed by the petitioner. However, in spite of passage of 18 days, the NCLT did not number Ext.P9 Miscellaneous Application. In the meanwhile, the petitioner noted that proceedings were pending before the NCLT for approval of the resolution plan submitted by the 1^st respondent.

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The petitioner submits that his counsel contacted the registry of NCLT sending an e-mail seeking permission to link up with the video conferencing by the NCLT in order to prosecute Ext.P9 Miscellaneous Application. But, the e-mail was not responded to. The petitioner's counsel again, on 18.01.2021, contacted the registry of NCLT over phone to get the link to appear and make submissions on behalf of the petitioner. The request was, however, not considered by the Registry of the NCLT.

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Since in spite of the several attempts, the petitioner could not get a posting of his Ext.P9 Miscellaneous Application, the petitioner approached this Court filing this writ petition seeking to direct the NCLT, Kochi Bench, to take up and hear Ext.P9 Miscellaneous Application and to keep in abeyance all further proceedings in IA(IBC)/13/2021 till the disposal of Ext.P9 Miscellaneous Application.

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When this writ petition came up for admission, this Court passed an interim order on 25.01.2021 directing the NCLT, Kochi Bench to consider Ext.P9 MA before passing

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orders in IA(IBC)/13/2021 in TIBA/II/KOB/2019 and IBA/28/KOB/2019 which stands posted on 28.01.2021.

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The 1^st respondent-Resolution Professional

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appeared and defended the writ petition. The 1^st respondent stated that NCLT passed order on 16.10.2019 to commence Corporate Insolvency Resolution Process (CIRP). A meeting of the Committee of Creditors was conducted after obtaining permission from NCLT. As regards the claim of the petitioner, the 1^st respondent submitted that the petitioner's claim was for ₹3,09,45,200/-. After verifying his claims based on records, it was not admitted and the decision was published in the website of the Resolution Professional. The 1^st respondent contended that if the petitioner has any grievance, he has to agitate it before the NCLT or NCLAT. This Court has no jurisdiction to entertain this writ petition when the proceedings are pending before the NCLT.

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The learned counsel for the 1^st respondent submitted that the Insolvency and Bankruptcy Code, 2016 being a complete Code in itself, it does not provide for any

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room for challenging the orders of NCLT, otherwise than in a manner prescribed by the Code itself. The learned counsel for the 1^st respondent further urged that only if the case falls under the category of inherent lack of jurisdiction of NCLT, this Court can intervene in the matter under Article 226 of the Constitution of India.

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The learned counsel for the 1^st respondent submitted that in deference to the interim orders passed by this Court, the NCLT may consider the Miscellaneous Application filed by the petitioner. Even if the NCLT considers the Miscellaneous Application filed by the petitioner in deference to the directions of this Court, that will be illegal and improper. Therefore, the interim order passed by this Court is liable to be revoked and this writ petition is liable to be dismissed relegating the petitioner to NCLAT.

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Relying on the judgment of the Apex Court in Embassy Property Developments Pvt. Ltd. v. State of Karnataka and others [2019 (17) SCALE 37], the learned Senior Counsel appearing for the 1^st respondent contended

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that one of the well recognized exceptions to the self-imposed restraint of the High Courts, in cases where a statutory alternative remedy of appeal is available, is the lack of jurisdiction on the part of the statutory/quasi-judicial authority, against whose order a judicial review is sought. Therefore, as regards exercise of powers under Article 226 of the Constitution of India despite availability of alternative remedy, the law is well settled. The writ petition is therefore liable to be dismissed.

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The learned counsel for the 1^st respondent further relied on the judgment of this Court in W.A. No.1083 of 2020 and argued that existence of a jurisdictional fact is sine qua non or condition precedent to the assumption of jurisdiction by a Court. If the jurisdictional fact does not exist, the Court or Tribunal cannot act. In the case on hand, the matter is pending before the NCLT which is the competent forum. There exists no factual foundation for this Court to exercise jurisdiction under Article 226 of the Constitution of India. In the circumstances, this writ petition is liable to be dismissed

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vacating the interim order already passed.

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The additional 3^rd respondent, who got herself impleaded in the writ petition, contended that if any order is passed by this Court against the petitioner, taking away his remedy, such an order is likely to affect her also since she has already filed a Miscellaneous Application before the NCLT seeking to recall the resolution plan. The NCLT has to consider the Miscellaneous Application filed by the 3^rd respondent also before the finalisation of the proceedings.

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I have heard the learned counsel for the petitioner, learned Senior Counsel appearing for the 1^st respondentResolution Professional and the learned counsel appearing for the additional 3^rd respondent.

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This Court, while entertaining this writ petition, found that the petitioner had approached the NCLT filing Ext.P9 Miscellaneous Application. The petitioner was aggrieved by the decision of the Resolution Professional declining his claim in its entirety. The NCLT directed the petitioner to file necessary documents before the Resolution

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Professional within two weeks and directed the Resolution Professional to consider those documents. The petitioner submitted the requisite documents on the last day of the two weeks period. However, the 1^st respondent found that the representation received from the petitioner is beyond the period granted by the NCLT. The Resolution Professional also held that he had finalised the plan even before receipt of the documents from the petitioner.

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This Court finds that when the NCLT directed the Resolution Professional to consider the documents submitted by the petitioner within a period of two weeks, the Resolution Professional, without waiting for the representation and documents of the petitioner, proceeded to submit his final resolution plan. The petitioner attempted to file a Miscellaneous Application before finalisation of the Resolution plan.

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The learned counsel for the 1^st respondent would contend that the resolution plan was approved by the Committee of Creditors in its meeting held on 26.12.2020,

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which was even before the Resolution Professional issuing Ext.P5 order. In the circumstances, the 1^st respondent stated that he is not in a position to consider the claim of the petitioner since it will be highly detrimental to the entire resolution process. It is to be noted that the petitioner's specific case was that the HR Department of the Corporate Debtor effected downward revision of petitioner's salary illegally. The Resolution Professional had omitted to consider or overlooked this fact. It is in the said circumstances that the petitioner attempted to get his grievance redressed through the NCLT by filing Ext.P9 Miscellaneous Application.

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In spite of the earnest efforts made by the petitioner, the petitioner could not get his Miscellaneous Application listed and heard by the NCLT. Without considering his Ext.P9 Miscellaneous Application, if the NCLT proceeds to finalise the resolution plan, it would have put the petitioner into great difficulties. It was in the said circumstances that this Court entertained the writ petition and passed an interim order directing the NCLT to consider Ext.P9

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Miscellaneous Application before passing orders in IA No.13/2021. This Court passed that order in the peculiar circumstances of this case and the order was intended to meet the ends of justice.

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In the circumstances, this Court does not find any impropriety so as to recall the interim order passed by this Court. The limited prayer of the petitioner in this writ petition is to direct the NCLT, Kochi Bench to hear and dispose of Ext.P9 Miscellaneous Application before the commencement of proceedings in IA(IBC)/13/2021 in TIBA/11/KOB/2019 on its file.

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In the circumstances of the case, this Court dispose of this writ petition confirming the interim order passed on 25.01.2021. It is made clear that this Court has not expressed any opinion on the merits or otherwise of the claims made by the petitioner.

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Sd/-

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N. NAGARESH, JUDGE

aks/15.02.2021

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APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE PHOTOCOPY OF CLAIM DATED 30.10.2019 SUBMITTED BY THE PETITIONER.

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EXHIBIT P2	TRUE PHOTOCOPY OF RELEVANT PAGES OF
	CONSOLIDATED SHEET DOWNLOADED FROM WEBSITE
	OF THE IST RESPONDENT.

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EXHIBIT P3	TRUE	PHOTOCOPY OF THE ORDER DATED
	14.12 THE BENCH	.2020 IN MA NO.177/KOB/2019 ISSUED BY NATIONAL COMPANY LAW TRIBUNAL, KOCHI .
EXHIBIT P4	TRUE SUBMI RESPO	PHOTOCOPY OF LETTER DATED 28.12.2020 TTED BY THE PETITIONER BEFORE THE IST NDENT.
EXHIBIT P5	TRUE ISSUE CLAIM	PHOTOCOPY OF LETTER DATED 29.12.2020 D BY THE IST RESPONDENT REJECTING THE OF THE PETITIONER.
EXHIBIT P6	TRUE NO.1, BENCH	PHOTOCOPY OF CAUSE LIST OF COURT NATIONAL COMPANY LAW TRIBUNAL, KOCHI DATED 18.1.2021.
EXHIBIT P7	TRUE	PHOTOCOPY OF EMAIL DATED 16.1.2021.
EXHIBIT P8	TRUE NATIO IN IA	PHOTOCOPY OF DAILY ORDERS ISSUED BY NAL COMPANY LAW TRIBUNAL, KOCHI BENCH (IBC)/13/2021 IN TIBA/11/KOB/2019.

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EXHIBIT P9	TRUE PHOTOC	OPY	O	F	UNNUMBERED
	MA.NO........./2 NATIONAL COMPANY	021 LAW	IN TRIB	TBA/1 UNAL,	1/KOB/2019, KOCHI.
EXHIBIT P10	TRUE PHOTOCOPY ISSUED TO THE	OF E PET	MAIL ITION	DATED ER FO	02.02.2019 RM THE HR
	DEPARTMENT, P ERNAKULAM.	VS	MEMO	RIAL	HOSPITAL,

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EXHIBIT P11 TRUE PHOTOCOPY OF EMAIL RECEIVED ON 07.01.2021 FROM NCLT, ERNAKULAM

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EXHIBIT P12 TRUE PHOTOCOPY OF FORM 26 AS UPLOADED IN THE TRACES WEBSITE OF IT DEPARTMENT

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RESPONDENTS' EXHIBITS

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EXHIBIT R1(a) TRUE COPY OF THE ORDER PASSED BY THE NCLAT, NEW DELHI DATED 25.10.2019 IN COMPANY APPEAL (AT) (INSOLVENCY) NO.1130 OF 2019 EXHIBIT R1(b) TRUE COPY OF THE ORDER PASSED BY THE NCLAT, NEW DELHI DATED 03.12.2019 IN COMPANY APPEAL (AT) (INSOLVENCY) NO.1130 OF 2019 EXHIBIT R1(c) TRUE COPY OF THE ORDER PASSED BY THE NCLT, KOCHI DATED 09.12.2019 IN MA/35/KOB/2019 IN TIBA/11/KOB/2019

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ncd

P.Jayagovind v. Bijoy Prabhakaran Pulipra(Resolution Professional)

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P.Jayagovind v. Bijoy Prabhakaran Pulipra(Resolution Professional)

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