M.M.Ramachandran vs The South Indian Bank on 29 November, 2019

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Kerala High Court

M.M.Ramachandran vs The South Indian Bank on 29 November, 2019

Bench: P.B.Suresh Kumar

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

   FRIDAY, THE 29TH DAY OF NOVEMBER 2019 / 8TH AGRAHAYANA, 1941

                       WP(C).No.32485 OF 2019(I)


PETITIONER:

               M.M.RAMACHANDRAN
               AGED 77 YEARS
               S/O.V.KAMALAKARA MENON HAVING PERMANENT RESIDENCE AT
               MATHUKARA MOOTHEDATH HOUSE, RAGAMALIKA PURAM,
               THRISSUR DISTRICT PIN-680001 AND CURRENTLY RESIDING
               AT 313, 3RD FLOOR, A-RAIS SHOPPING COMPLEX,
               BUR DUBAI, DUBAI, UNITED ARAB EMIRATES

               BY ADVS.
               SRI.M.P.SHAMEEM AHAMED
               SRI.CYRIAC TOM

RESPONDENTS:

      1        THE SOUTH INDIAN BANK
               REGD, OFFICE .SIB HOUSE, T.B.ROAD,
               MISSION QUARTERS, THRISSUR-680001

      2        MANIVANNA.J
               INSOLVENCY PROFESSIONAL IP REG NO.IBBI/IPA-002/IP-
               N00534/2017-2018/11695, PLOT NO.53B, 8/330,
               VISHALAKSHI NAGAR FOURT CROSS STREET, SANTHOSAPURAM,
               CHENNAI, TAMIL NADU-600073

      3        M/S.ATLAS GOLD TOWNSHIPS(INDIA)
               PRIVATE LIMITED XI/305 H, OPP.CIAL, VAPPALASSERY,
               NEDUMBASSERY, ANGAMALY, KOCHI-683572

      4        THE NATIONAL COMPANY LAW TRIBUNAL (NCLT)
               KOCHI BENCH, COMPANY LAW BHAWAN, BMC ROAD
               THRIKKAKARA.P.O, KAKKANAD, KOCHI-682021


               SUNIL SHANKER - SC

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.32485 OF 2019(I)

                                 2


                 W.P.(C) No.32485 of 2019
           -----------------------------------------------


                        JUDGMENT

Heard the learned counsel for the petitioner as also the learned counsel for the first respondent.

2. Ext.P5 order of the National Company Law Tribunal is appealable under Section 61 of the Insolvency and Bankruptcy Code, 2016 before the National Company Law Appellate Tribunal. The petitioner has no case that the aforesaid remedy provided to him under the Code for redressal of his grievances against Ext.P5 order is not efficacious in any manner. The writ petition in the circumstances, is not maintainable.

3. The learned counsel for the petitioner submits that Ext.P3 application, on which Ext.P5 order was passed by the Tribunal was barred by limitation, and Ext.P5 order is, therefore, to be taken as one issued WP(C).No.32485 OF 2019(I) 3 without jurisdiction. According to the learned counsel, the petitioner is therefore, entitled to invoke the jurisdiction of this court under Article 226 of the Constitution. The learned counsel has placed reliance on the decision of the Apex Court in Gaurav Hargovindbhai Dave v. Asset Reconstruction Company (India) Ltd. and another [Civil Appeal No.4952 of 2019], in support of his plea that Ext.P3 application was barred by limitation. Alternatively, the learned counsel prayed for a breathing time so as to enable the petitioner to approach the Appellate Tribunal functioning at Delhi.

4. The question of limitation raised by the petitioner is also a question that could be raised by the petitioner before the Appellate Tribunal. I am, therefore, not impressed by the argument of the learned counsel for the petitioner that as the question of limitation is involved in the matter, the petitioner is entitled to challenge the impugned order in this proceedings. WP(C).No.32485 OF 2019(I) 4 Nevertheless, having regard to the peculiar facts of this case and the contention raised, I am of the view that the writ petition can be disposed of keeping in abeyance further proceedings pursuant to the impugned order for a period of thirty days, so as to enable the petitioner to challenge the impugned order before the Appellate Tribunal and obtain necessary interim orders, if entitled. Ordered accordingly.

Sd/-

P.B.SURESH KUMAR, JUDGE.

PV WP(C).No.32485 OF 2019(I) 5 APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 COPY OF THE GUARANTEE INVOCATION LETTER DATED 01.01.2016 EXHIBIT P2 COPY OF THE WRIT PETITION NO.27923/2018 EXHIBIT P3 COPY OF THE APPLICATION FILED BY THE 1ST RESPONDENT UNDER SECTION 7 OF THE IBC(WITHOUT ANNEXURES) EXHIBIT P4 COPY OF SUPREME COURT JUDGMENT DATED 18.09.2019 IN THE CASE OF GAURAVINDBHAI DAVE VS ASSET RECONSTRUCTION COMPANY(INDIA) LTD, AND ANR, RESPONDENT(S) EXHIBIT P5 COPY OF ORDER DATED 19.11.2019 RESPONDENTS' EXHIBITS: NIL

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