Calcutta High Court (Appellete Side)
Manoj Kumar Sharma vs Canara Bank & Ors on 2 December, 2019
1
2nd December,
2019
(AK)
51
W.P. 22016(W) of 2019
Manoj Kumar Sharma
Vs.
Canara Bank & Ors.
Mr. Rajarshi Dutta
Mr. Nischay Mall
...For the Petitioner.
Mr. Dipankar Das
...For the Respondent Nos.1 & 2.
The grievance of the writ petitioner is that the respondent no.1 is proceeding patently contrary to Clause 2 of a resolution adopted and approved in a CIRP proceeding under the Insolvency and Bankruptcy Code, thereby acting contrary to the contract itself and consequentially against the provisions of the Indian Contract Act.
Learned counsel for the petitioner relies on an unreported judgment passed in MAT 1531 of 2019 with CAN 10321 of 2019 (Prakash Kumar Damani and others Vs. Punjab National Bank and others), wherein a Division Bench of this court narrated the case of the petitioner therein, that he was a guarantor in respect of the credit facility enjoyed by the principal debtor and that the liability of the principal debtor stood satisfied. 2 Since the petitioner was a guarantor in respect of the credit facility, the Division Bench held, the opposite parties were not directed to take any action for the realization of the dues in question and order in terms of prayer (c) in the said interlocutory application was passed.
However, there is specific provision in the law for an appeal against the present impugned order before the NCLAT. It is well- settled that this court usually chooses to impose restriction on itself in exercising the supervisory jurisdiction under Article 227 of the Constitution of India or the prerogative writ jurisdiction under Article 226 of the Constitution in cases where an equally efficacious alternative remedy is available to the challenger.
As far as the cited decision is concerned, the said case did not lay down any ratio decidendi on the question as to whether this court has to entertain an application under Article 226 of the Constitution of India in a situation like the present writ petition.
In fact, the cited order was merely an interlocutory order where no question of law was decided at all. Although the Division Bench, in that particular case, might have granted an interlocutory order in favour of the petitioner therein, it does not mean that the same is binding as a precedent for the proposition that this court ought to entertain a writ petition despite the availability of an equally efficacious alternative remedy. 3
In such view of the matter, W.P. 22016(W) of 2019 is dismissed as not maintainable, with liberty to the petitioner to approach the appropriate forum with a properly constituted appeal.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be given to the parties upon compliance of all requisite formalities.
(Sabyasachi Bhattacharyya, J.)