w w w . L a w y e r S e r v i c e s . i n



Beryl Selvamani & Others v/s M/s. St. John Freight Systems Limited Rep. by Resolution Professional/Liquidator R. Venkatakrishnan C-98 & Others


Company & Directors' Information:- C P SYSTEMS PVT LTD [Active] CIN = U29199DL1999PTC101718

Company & Directors' Information:- T SYSTEMS INDIA PRIVATE LIMITED [Strike Off] CIN = U72200DL2004PTC127138

Company & Directors' Information:- A K M SYSTEMS PRIVATE LIMITED [Active] CIN = U74899DL1984PTC018546

Company & Directors' Information:- FREIGHT SYSTEMS (INDIA) PRIVATE LIMITED [Active] CIN = U63010TN1993PTC062664

Company & Directors' Information:- W B M SYSTEMS PRIVATE LIMITED [Active] CIN = U74899DL1984PTC017764

Company & Directors' Information:- A R G SYSTEMS LIMITED [Active] CIN = U74899DL1994PLC062621

Company & Directors' Information:- S SYSTEMS PVT LTD [Active] CIN = U72200DL2001PTC111270

Company & Directors' Information:- SYSTEMS INDIA PRIVATE LIMITED [Active] CIN = U74899DL1994PTC059377

Company & Directors' Information:- V S S SYSTEMS INDIA PRIVATE LIMITED [Strike Off] CIN = U03000TZ1997PTC007933

Company & Directors' Information:- A. S. FREIGHT INDIA PRIVATE LIMITED [Strike Off] CIN = U60230WB2008PTC128907

Company & Directors' Information:- I L SYSTEMS INDIA PRIVATE LIMITED [Strike Off] CIN = U18100GJ1999PTC037104

Company & Directors' Information:- A V SYSTEMS PRIVATE LIMITED [Active] CIN = U31909PN2001PTC015788

Company & Directors' Information:- N D T SYSTEMS PRIVATE LIMITED [Active] CIN = U74210MH1996PTC104744

Company & Directors' Information:- S P P S SYSTEMS PRIVATE LIMITED [Active] CIN = U72200TG2000PTC033732

Company & Directors' Information:- L S I SYSTEMS (INDIA) PRIVATE LIMITED [Active] CIN = U32109DL2000PTC105666

Company & Directors' Information:- H B S SYSTEMS PRIVATE LIMITED [Active] CIN = U74899DL1992PTC048198

Company & Directors' Information:- U C SYSTEMS INDIA PVT LTD [Active] CIN = U72200DL1997PTC084267

Company & Directors' Information:- BERYL PVT LTD [Active] CIN = U24231GJ1969PTC001565

Company & Directors' Information:- L C SYSTEMS PRIVATE LIMITED [Active] CIN = U55200PB2012PTC036880

Company & Directors' Information:- C I SYSTEMS PVT LTD [Active] CIN = U45200TG1983PTC003915

Company & Directors' Information:- M J SYSTEMS (INDIA) PRIVATE LIMITED [Active] CIN = U72900MH2005PTC150591

Company & Directors' Information:- R R SYSTEMS PRIVATE LIMITED [Active] CIN = U30007DL1999PTC098142

Company & Directors' Information:- C N C SYSTEMS PVT LTD [Active] CIN = U72900DL1999PTC100476

Company & Directors' Information:- M B M SYSTEMS PRIVATE LIMITED [Active] CIN = U30006DL1988PTC030404

Company & Directors' Information:- C SYSTEMS PRIVATE LIMITED [Active] CIN = U31103TN2009PTC071155

Company & Directors' Information:- R M I SYSTEMS PRIVATE LIMITED [Active] CIN = U72200KA2011PTC060246

Company & Directors' Information:- W & S SYSTEMS (INDIA) PRIVATE LIMITED [Active] CIN = U74910TN2005PTC055568

Company & Directors' Information:- M. Y. T. SYSTEMS PRIVATE LIMITED [Under Process of Striking Off] CIN = U74990TG2016PTC110104

Company & Directors' Information:- T. C. N. FREIGHT PRIVATE LIMITED [Strike Off] CIN = U60200DL2010PTC207703

Company & Directors' Information:- S E I SYSTEMS LIMITED [Strike Off] CIN = L74899DL1994PLC061731

Company & Directors' Information:- D C S SYSTEMS LIMITED [Strike Off] CIN = U72100MP2000PLC014224

Company & Directors' Information:- I T G SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U72200DL1999PTC098431

Company & Directors' Information:- I O SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U72200TG1998PTC029166

Company & Directors' Information:- S E C O M SYSTEMS PRIVATE LIMITED [Active] CIN = U31909HR2009PTC039084

Company & Directors' Information:- BERYL SYSTEMS PRIVATE LIMITED [Active] CIN = U74140HR2010PTC040429

Company & Directors' Information:- D M SYSTEMS PRIVATE LIMITED [Active] CIN = U72100DL1999PTC101817

Company & Directors' Information:- K K K SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U72100UP1995PTC017784

Company & Directors' Information:- E-SYSTEMS (INDIA) PRIVATE LIMITED [Active] CIN = U72200WB2003PTC096700

Company & Directors' Information:- J B SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U72200KL1997PTC011510

Company & Directors' Information:- M AND S SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U72200MH1996PTC103819

Company & Directors' Information:- K AND M SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U32101UP1993PTC015352

Company & Directors' Information:- S S V SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U72300TN1996PTC037072

Company & Directors' Information:- R G B SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U72300TN1998PTC040485

Company & Directors' Information:- C C SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U31100TG1996PTC023469

Company & Directors' Information:- K R T SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U52392TN2002PTC048704

Company & Directors' Information:- B & D SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U72100OR1996PTC004611

Company & Directors' Information:- A M P S SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U72900WB2001PTC093281

Company & Directors' Information:- A N JOHN PVT LTD [Active] CIN = U74999WB1950PTC019260

Company & Directors' Information:- G M E SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U71290DL1987PTC029758

Company & Directors' Information:- R B SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U31300RJ1990PTC005689

Company & Directors' Information:- E D H SYSTEMS PVT. LTD. [Strike Off] CIN = U99999DL1991PTC045384

Company & Directors' Information:- H N G SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U72900RJ2012PTC040713

Company & Directors' Information:- F A SYSTEMS PRIVATE LIMITED [Active] CIN = U72100MH2004PTC148941

Company & Directors' Information:- H AND P SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U74900PN2013PTC146918

Company & Directors' Information:- A. G. PROFESSIONAL SYSTEMS PRIVATE LIMITED [Active] CIN = U74999MH2011PTC217915

Company & Directors' Information:- G. K. SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U72900PN2006PTC129225

Company & Directors' Information:- T G SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U31403TN2006PTC061859

Company & Directors' Information:- I T SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U72400AS1999PTC005824

Company & Directors' Information:- Y Y SYSTEMS PRIVATE LIMITED [Active] CIN = U72200CH2015PTC035767

Company & Directors' Information:- N P M E SYSTEMS PRIVATE LIMITED [Active] CIN = U29299DL1998PTC094645

Company & Directors' Information:- R D SYSTEMS PRIVATE LIMITED [Active] CIN = U72100DL2000PTC103462

Company & Directors' Information:- V C SYSTEMS PVT LTD [Active] CIN = U72200DL2001PTC111812

Company & Directors' Information:- K B N SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U64204DL1997PTC088904

Company & Directors' Information:- A B SYSTEMS PRIVATE LIMITED [Active] CIN = U93000DL2012PTC234774

Company & Directors' Information:- M W FREIGHT PRIVATE LIMITED [Active] CIN = U63000DL2011PTC228165

Company & Directors' Information:- J S N D SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U72900GJ2011PTC065160

Company & Directors' Information:- S G FREIGHT PRIVATE LIMITED [Active] CIN = U63030DL2020PTC366179

Company & Directors' Information:- J C D SYSTEMS PVT LTD [Strike Off] CIN = U32109PB1988PTC008438

Company & Directors' Information:- Y R SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U72900DL2000PTC105093

Company & Directors' Information:- S R SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U72900DL2000PTC104743

Company & Directors' Information:- F C S SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U73100DL1997PTC090517

Company & Directors' Information:- E R SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U72200TG2008PTC061904

Company & Directors' Information:- R & T SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U72200DL2008PTC179617

Company & Directors' Information:- Q S Q SYSTEMS PRIVATE LIMITED [Strike Off] CIN = U51109KA2000PTC026269

    W.P.(MD) SR.Nos. 22360, 22331, 22334, 22337, 22340, 22343, 22346, 22350, 22353 & 22363 of 2020

    Decided On, 23 October 2020

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE R. SURESH KUMAR

    For the Petitioners: Isaac Mohanlal, Senior counsel for M/s. Isaac Chambers. For the Respondents: -----------



Judgment Text

(Prayer in W.P.(MD).SR.No.22360 of 2020: Petition filed under Article 226 of Constitution of India, to issue a Writ of Certiorari, calling for the records relating to the impugned order passed by the 4th respondent in Ref. SJFSL/HR/DISC/13274, Dated 24.06.2020 discharging the petitioner suddenly from the employment as Senior Deputy Manager-Chartering & Agency from the first respondent company and quash the same.)Common Order1. These batch of writ petitions were filed challenging the order of discharge passed by the fourth respondent on behalf of the first respondent against these petitioners who were the employees / officials of the first respondent.2. Since the first respondent is a company registered under the Companies Act, 2013 and on whose behalf the orders passed by the fourth respondent, at the instance of the second respondent, who is none other than the Resolution Professional / Liquidator, under the Insolvency and Bankruptcy Code, (herein after referred to as "the Code") are under challenge, the Registry has raised a doubt that, how these writ petitions would be maintainable before this Court under writ jurisdiction.3. It seems that, the said query raised by the Registry has been replied by the learned counsel for the petitioners that, the order impugned in these writ petitions were issued as a process of liquidation proceedings at the instance of the second respondent / Resolution Professional / Liquidator.4. They further contended that the second respondent is the statutory authority appointed by the National Company Law Tribunal, vide order, dated 26.11.2019 under the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations 2016, the present impugned orders were passed since in violation of the amendment to the said Regulations 2016, these writ petitions are maintainable under Article 226 of the Constitution.5. Still not satisfied with the said reply given by the learned counsel appearing for the petitioners as to the query raised by the Registry regarding maintainability of these writ petitions at the SR stage, the Registry has placed a note before me, on the question of maintainability, accordingly, these writ petitions at the SR stage were directed to be posted before me under the caption "For maintainability". Accordingly these writ petitions at the SR stage were heard only with regard to the maintainability of these writ petitions.6. The relevant factors which are required to be noticed for answering the said question of maintainability are as follows:(i) that the first respondent is a company registered under the Companies Act, herein after to be termed as "corporate debtor", within the meaning of the bankruptcy Code, had been engaging in the business of logistics and shipping industry. It seems that, this corporate debtor is having business or branches at various parts of the country. During the business transaction, this corporate debtor seems to have availed a loan from a Bank called "State Bank of Travancore", Tuticorin branch, and the said Bank seems to have declared the loan secured by the corporate debtor as Non-Performing Asset on 30.09.2015. Thereafter a Asset Reconstruction Company, namely M/s. Phoenix ARC Pvt., Ltd., had entered into an agreement with the Bank, pursuant to which, the Asset Reconstruction Company has stepped into the shoes of the Bank and subsequently the Asset Reconstruction Company (ARC) issued a demand notice to "the corporate debtor" on 07.12.2016 for the amount defaulted, to the extent of Rs.60,92,44,653/- under SARFAESI Act. Only in that circumstances, the ARC seems to have filed an application under Section 7 of the IB Code, 2016 before the NCLT, i.e., National Company Law Tribunal at Chennai in C.P.No.759 (IB) / 2018.(ii) In the said C.P, the application filed under Section 33 (2) of the Code, by the Resolution Professional, i.e., the second respondent was taken up for hearing and was decided by the order of the NCLT, Chennai, dated 26.11.2019, where the NCLT ordered for liquidation of corporate debtor with the following directions:a) This Bench hereby orders the Corporate Debtor to be liquidated in the manner as laid down in the Chapter by issuing a public notice stating that the Corporate Debtor is in liquidation with a direction to the liquidator to send this order to ROC with which this company has been registered.b) The Resolution Professional viz Mr.R.Venkatakrishnan is hereby appointed to act as Liquidator for the purpose of liquidation of the corporate debtor, therefore all powers of the board of directors, Key managerial personnel and partners of the Corporate Debtor, as the case may be, shall cease to have effect and shall be hereby vested in the liquidator. The personnel of the Corporate Debtor are directed to extend all co-operations to the liquidator as may be required in managing the affairs of the Corporate Debtor. The Insolvency Professional appointed as liquidator will charge fees for conduct of the liquidation proceedings in proportion to the value of the liquidation estate assets as specified under regulation 4 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 and the same shall be paid to the Liquidator from the proceeds of the liquidation estate under Section 53 of the Code.(c) Since the liquidation order has been passed, no suit or other legal proceedings shall be instituted by or against the Corporate debtor without prior approval of this Adjudicating Authority save and except as mentioned in sub-section 6 of the Section 33 of the Code.(d) This liquidation order shall be deemed to be notice of discharge to the officers, employees and workmen of the Corporate Debtor is continued during the liquidation process by the Liquidator.(e) The liquidator is directed to carry the functions of the Liquidator as envisaged under the Insolvency and Bankruptcy Code, 2016 and also Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016."(iii) As against the said order passed by the NCLT, Chennai, the third respondent preferred Appeal before the National Company Law Appellate Tribunal, New Delhi (NCLAT) in Company Appeal (AT) (INS) No.1402 of 2019. The said Appeal was decided by the NCLAT, New Delhi on 04.03.2020, where it has dismissed the appeal as devoid of merits.(iv) It is to be noted that, as against the said order passed by the NCLAT, New Delhi, Civil Appeal in C.A.No.2113 of 2020 has been filed before the Hon’ble Supreme Court of India and the same is stated to be pending.(v) In that circumstances, the second respondent, being the Resolution Professional / Liquidator of corporate debtor, wanted to carry out the business of the corporate debtor for its beneficial liquidation as it is necessary within the meaning of Section 35(1)(e) of the Code. As part of the said process, the second respondent decided to reduce the strength of the employees / officials working in the first respondent corporate debtor and accordingly he seems to have directed the HR Department of the corporate debtor to discharge some of the officials / employees.(vi) Accordingly the Senior Assistant General Manager (HR) of the corporate debtor, the fourth respondent herein, vide its series of orders, dated 24.06.2020 discharged all these petitioners from duty by separate orders. By thus, these petitioners have been discharged from duties of the company, i.e., the corporate debtor, the first respondent herein, as instructed by the Resolution Professional / Liquidator, i.e., the second respondent. Aggrieved over the said order of discharge individually passed against each of the petitioners, dated 24.06.2020, these petitioners have filed these writ petitions respectively, with the prayer to quash that order.7. This is how these writ petitions came to be filed before this Court invoking Article 226 of the Constitution, where the Registry has raised the doubt as to the maintainability of these writ petitions as explained herein above.8. On the point of maintainability, Mr.Isaac Mohanlal, learned Senior counsel appearing for the petitioners has made detailed submissions.9. He has taken this Court to various provisions of the IBC 2016, namely Sections 16, 17, 18, 20, 22, 25, 28, 33, 34, 35, 60, 61, 62 and 63.10. By taking into these provisions of the IBC 2016, the learned Senior counsel would contend that, there is a scheme provided under IBC 2016 as to how the issue with regard to the corporate debtor has to be dealt with. He would further state that, under Section 16, an Interim Resolution Professional, in short IRP can be appointed by the adjudicating authority, who, under Section 17 would manage the affairs of the corporate debtor. The duties of IRP is stated at Section 18. Under Section 20 of the Code, the management of operations of corporate debtor as a going concern is provided for. Pausing for a moment, the learned Senior counsel would contend that, the appointment of IRP is to explore the possibility of operating the concern, i.e., the corporate debtor as a going concern and in this regard, he shall take every endeavor to protect and preserve the value of the property of the corporate debtor and manage the operation of the corporate debtor as a going concern.11. He would further contend that, then a committee of creditors (COC) have to be constituted, before whom, the issue has to be referred and certain procedures have been envisaged under Sections 22 and 23 of the Code. The duties of the RP is enumerated under Section 25 of the Act and under Section 28, the committee of creditors have to approve certain actions.12. By relying upon these provisions, the learned Senior counsel would further took this Court to Section 33 of the Act, which deals about the initiation of Liquidation. After exhausting all these procedure hitherto contemplated under various provisions as stated above, ultimately the adjudicating authority will go into the aspect of initiation of liquidation, accordingly, the adjudicating authority can pass orders requiring the corporate debtor to be liquidated. This was exactly ordered by the NCLT, in its order, dated 23.11.2019, where under Section 33 (1) of the Code, the adjudicating authority has ordered for liquidation of the corporate debtor with certain directions.13. In this context, the learned Senior counsel would contend that, direction No.C states that, since the liquidation order has been passed, no suit or other legal proceedings shall be instituted by or against the corporate debtor without prior approval of the adjudicating authority, save and except as mentioned in sub-section 6 of Section 33 of the Code.14. By relying upon these conditions, the learned Senior counsel would rely upon Section 33 (5), (6) and (7) which reads thus:"(5) Subject to section 52, when a liquidation order has been passed, no suit or other legal proceeding shall be instituted by or against the corporate debtor: Provided that a suit or other legal proceeding may be instituted by the liquidator, on behalf of the corporate debtor, with the prior approval of the Adjudicating Authority.(6) The provisions of sub-section (5) shall not apply to legal proceedings in relation to such transactions as may be notified by the Central Government in consultation with any financial sector regulator.(7) The order for liquidation under this section shall be deemed to be a notice of discharge to the officers, employees and workmen of the corporate debtor, except when the business of the corporate debtor is continued during the liquidation process by the liquidator."15. Therefore the only exception provided for filing the suit by or against the corporate debtor is as contemplated under the aforesaid provisions under Section 33. In all other context, no suit or any proceedings shall be filed either by the corporate debtor or against the corporate debtor, therefore the learned Senior counsel would contend that, the only option available before these petitioners to redress their grievance of abrupt discharge, is invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution.16. He would also state that, though powers have been vested in the adjudicating authority under Section 60 of the Code, that is not related to the issue to be raised by the employees of the corporate debtor as against the discharge of their duties by the liquidator, of course under the liquidation process and therefore the provision contained in Section 60 of the Act also would be of no avail for these petitioners to invoke and therefore certainly the only remedy available to these petitioners to challenge the order of discharge made against them is, the writ jurisdiction of this Court under Article 226 of the Constitution, therefore these writ petitions are very well maintainable before this Court, hence the office objection can be rejected and the writ petitions can be entertained, he contend.17. In support of his contention, he relied upon a recent decision of the Hon’ble Supreme Court in the matter of Embassy Property Developments Pvt., Ltd., v. State of Karnataka reported in (2020) 1 MLJ 65 (SC).18. I have considered the said submissions made by the learned Senior counsel appearing for the petitioners and have perused the materials placed before this Court.19. The fact remains that, by order dated 26.11.2019, the adjudicating authority, i.e., the National Company Law Tribunal, Chennai, has passed an order for liquidation of the corporate debtor, i.e., the first respondent with certain conditions. The second respondent, who was the Resolution Professional, has been made as the liquidator within the meaning of Section 34 of the Code and accordingly he has taken incharge of the corporate debtor in the liquidation process.20. Section 35 of the Code speaks about the powers and duties of the liquidator, wherein, Section 35 (1) (e) reads thus “to carry on the business of the corporate debtor for its beneficial liquidation as he considers necessary”.21. Probably by executing the said duty cast upon the liquidator under Section 35(1) (e) of the Code, in the process of carrying out the business of the corporate debtor for its beneficial liquidation, the second respondent seems to have directed the HR of the corporate debtor to minimize the staff / officials / employees, accordingly the said directive seems to have been carried out by the HR of the corporate debtor, which reflected or culminated in the impugned order of discharge against these petitioners.22. Be that as it may, this Court, for the purpose of deciding the maintainability of these writ petitions, need not go into the merits of the impugned orders.23. In this context, it is the vehement contention of the learned Senior counsel appearing for the petitioners that, Article 226 of the Constitution is the only remedy for the petitioners against the corporate debtor as these petitioners are already precluded from initiating any suit or proceedings against the corporate debtor in view of the provisions of the Code as well as the conditions imposed by the adjudicating authority in its order of liquidation.24. In this context, it can also be taken note of that, under Section 35 (1) (k) it is one of the duty of the liquidator to institute or defend any suit, prosecution or other legal proceedings, civil or criminal in the name of on behalf of the corporate debtor. However this duty either to initiate or to defend the suit, probably would be subject to the provisions namely Section 33 (5), (6) and (7) of the Act which has also been quoted herein above.25. Only in respect of legal proceedings in relation to such transaction as may be notified by the Central Government in consultation with any finance sector regulator, such embargo under section 33(5) would not be applicable. This has been emphasized at sub-section (6) of Section 33. Therefore in my view, the duty cast upon the liquidator within the meaning of Section 35(1) (k) to defend the suit or prosecution or other legal proceedings, civil or criminal instituted against the corporate debtor, cannot be fit in as against the prohibition made under Section 33(5) of the Act, as both these provisions are to be reconciled.26. But at the same time, whether the petitioners has got remedy to approach the adjudicating authority within the meaning of Section 60 of the Code is the only question to be gone into, in order to give answer to the query raised before this Court with regard to the maintainability of these writ petitions.27. Section 60 of the IBC 2016 reads thus:"60. Adjudicating Authority for corporate persons –(1) The Adjudicating Authority, in relation to insolvency resolution and liquidation for corporate persons including corporate debtors and personal guarantors thereof shall be the National Company Law Tribunal having territorial jurisdiction over the place where the registered office of the corporate person is located.(2) Without prejudice to sub-section (1) and notwithstanding anything to the contrary contained in this Code, where a corporate insolvency resolution process or liquidation proceeding of a corporate debtor is pending before a National Company Law Tribunal, an application relating to the insolvency resolution or [liquidation or bankruptcy of a corporate guarantor or personal guarantor, as the case may be, of such corporate debtor] shall be filed before such National Company Law Tribunal.(3) An insolvency resolution process or [liquidation or bankruptcy proceeding of a corporate guarantor or personal guarantor, as the case may be, of the corporate debtor] pending in any Court or tribunal shall stand transferred to the Adjudicating Authority dealing with insolvency resolution process or liquidation proceeding of such corporate debtor.(4) The National Company Law Tribunal shall be vested with all the powers of the Debt Recovery Tribunal as contemplated under Part III of this code for the purpose of sub-section (2).(5) Notwithstanding anything to the contrary contained in any other law for the time being in force, the National Company Law Tribunal shall have jurisdiction to entertain or dispose of- (a) any application or proceeding by or against the corporate debtor or corporate person; (b) any claim made by or against the corporate debtor or corporate person, including claims by or against any of its subsidiaries situated in India; and (c) any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under this Code.(6) Notwithstanding anything contained in the Limitation Act, 1963 (36 of 1963) or in any other law for the time being in force, in computing the period of limitation specified for any suit or application by or against a corporate debtor for which an order of moratorium has been made under this part, the period during which such moratorium is in place shall be excluded."28. The adjudicating authority, in relation to the Insolvency Resolution and Liquidation for corporate person including corporate debtors, is the National Company Law Tribunal, i.e., NCLT. The NCLT has been vested with all the powers of the DRT, i.e., Debt Recovery Tribunal as contemplated under Part-III of the code for the purpose of sub-section 2 of Section 60.29. These kind of provisions, i.e., sub sections 1 to 4 of Section 60 of the Code deal with the powers of the adjudicating authority, namely NCLT in relation to Insolvency Resolution and Liquidation for corporate persons including corporate debtors and personal guarantors etc.,30. However sub-section 5 of Section 60 specifically makes it clear with its non-obstante clause that, not withstanding anything to the contrary contained in any other law for the time being in force, the NCLT shall have jurisdiction to entertain or dispose of any application or proceeding by or against the corporate debtor or corporate person.31. Pausing for a moment, the words "any application or proceeding", as contemplated under Section 60 (5) (a), against the corporate debtor or a corporate person, made by any third party, whether would include the prospective litigation as that of the one now presented or filed by these petitioners, is the next question.32. In this context, the learned Senior counsel has heavily relied upon the Embassy Property Development Pvt., Ltd., case (cited supra). He would also state, by relying upon the said decision that, the jurisdiction of the NCLT is only related to the issues stated or enumerated in the Code itself and not beyond that. He would further state that, in the said decision, as against the order passed by the NCLT, the Karnataka State Government, instead of preferring appeal before NCLAT, had straight away gone to the High Court of Karnataka by invoking Article 226 / 227 of the Constitution, where the Karnataka High Court, having entertained the writ petition, set aside the order passed by the NCLT, therefore the issue came up before the Hon’ble Supreme Court for consideration, where, as to whether the order passed by the Karnataka High Court entertaining a writ petition from the Government of Karnataka against the order passed by the NCLT without exhausting the statutory appellate remedy by preferring appeal before the NCLAT was acceptable or justifiable or not, was considered.33. In this context, the learned Senior counsel, having taken this Court on the said decision, has contended that, even if there is any provision for approaching the appellate forum under the Code is available, even without exhausting the same, extraordinary jurisdiction of the High Court under Article 226 / 227 can be invoked. By drawing inspiration from the said decision of the Hon’ble Apex Court referred to above, the learned Senior counsel would further contend that, in the present cases, these petitioners have been abruptly discharged all of a sudden without any notice and without any procedure to be followed as established under law. As against which, no suit or proceedings can be filed by these petitioners as per the prohibition stated in the code as well as the orders passed by the NCLT, in its order for liquidation, having no option, they have approached this Court by invoking Article 226 of the Constitution of India.34. In this context, the learned Senior counsel would further contend that, the NCLT, under Section 60, cannot entertain any petition or application to be filed by these kind of employees of the corporate debtors, as those issues are not necessarily to be considered by the adjudicating authority within the meaning of Section 60 of the Act.35. I am not impressed with the said submission made by the learned Senior counsel for the petitioners. The reason being that, the main issue to be agitated before the adjudicating authority under Section 60 of the Act is related to insolvency resolution and liquidation for corporate persons including corporate debtors and corporate guarantors.36. First of all, these petitioners were discharged from duties as part of the process undertaken by the liquidator under Section 35(1) (e) of the Act to carryout the business of the corporate debtor for its beneficial liquidation.37. The discharging of the duties of these petitioners and some others is to protect the properties of the corporate debtor and for that purpose, in order to viably to run the business or to carryout the same for sometime for the sole purpose of the beneficial liquidation, the second respondent through the fourth respondent has chosen to discharge these people. Therefore this is also part of the Insolvency Resolution Process and therefore we can even to say that, even under Section 60(1) of the Code, these issues can very well be adjudicated before the adjudicating authority.38. Assuming that, it cannot be adjudicated within the meaning of Section 60 (1) of the Act, no doubt it can very well be agitated under sub-section 5 of Section 60 which has already been extracted and explained herein above. 39. By virtue of the non-obstante clause made in Section 60 (5) of the Act, if any application or proceeding filed by or against the corporate debtor or corporate person, on which, the adjudicating authority, namely the National Company Law Tribunal, shall have the jurisdiction to entertain and dispose.40. With this specific and infact an effective remedy which is very much available in the hands of the petitioners, they cannot choose to approach this Court by invoking the extraordinary power of this Court exercisable under Article 226 of the Constitution.41. Secondly, looking from yet another angle also, this Court feel that, these petitions cannot be entertained before this Court.42. The corporate debtor is a company which was registered under the Companies Act and now by virtue of the provisions of the IBC 2016, the Corporate Resolution Process was commenced and as of now it is landed in the order for liquidation by the adjudicating authority, by its order, dated 26.11.2019 which has been confirmed by the appellate authority, namely NCLAT by its order, dated 04.03.2020.43. The corporate debtor / company, though was running a business of logistics and shipping industry, it cannot be construed or fit in within the term of "public duty or public service". The scope of Article 226 to issue prerogative writs is not only for the enforcement of fundamental rights but also other rights, and also it is not only against the State or any instrumentality of the State but also against any person, as the language used in Article 226 makes the following words “to issue any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs,...... for the enforcement of any of the rights conferred by Part III and for any other purpose". Therefore the Hon’ble Supreme Court, in a catena of decisions, has held that, the power of the High Courts under Article 226 is extendable for the enforcement of not only the fundamental rights guaranteed or conferred under part III of the Constitution, but also for any other purpose and has further held that, such kind of prerogative writs can be issued not only against the Government or instrumentality of the Government or State but also against any person or authority.44. However, for the purpose of issuance of the writ under Article 226, the criteria is, whether the authority or person against whom such writ is sought for, is a State or Instrumentality of the State within the meaning of Article 12 of the Constitution.45. In this context, Courts have taken the view that, the maintainability of writ petition or amenability of a body or organization or authority to a writ jurisdiction, is to be determined, by the test of "public function or public duty".46. In order to appreciate the said legal position, few decisions can be worthily mentioned or usefully be referred to hereunder.47. In (2019) 3 SCC 589, Ramesh Sanka v. Union of India, the question was whether the writ petition under Article 32 filed before the Supreme Court for enforcement of personal contractual right, was maintainable or not, wherein their Lordships have held as follows:"14. At the outset, we find that the writ petitioner has not claimed any relief in person qua respondent No.12 – Company, in this writ petition. Even otherwise, no writ lies under Article 32 of the Constitution at the instance of any employee or the employer for claiming enforcement of any personal contractual rights inter se the employee and his employer.15. If the writ petitioner has any personal grievance in relation to any of his contractual personal rights flowing from any service conditions or any other agreement with the respondent No.12 – Company, his legal remedy lies in filing Civil Suit or take recourse to any other civil law remedy for adjudication and enforcement of his rights qua respondent No.12 – Company or anyone claiming through them, as the case may be. The writ petition under Article 32 of the Constitution is not the remedy for agitating any such grievance."48. In (2019) 3 SCC 594 in the matter of Sneh Lata Goel v. Pushplata, dealing with Section 21 of CPC, the Court has relied upon the earlier decision of the Hon’ble Apex Court in Harshad Chiman Lal Modi v. DLF Universal Ltd., reported in (2005) 7 SCC 791, where the following passage has been relied upon:"30.... The jurisdiction of a court may be classified into several categories. The important categories are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and (iii) Jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is a nullity."49. Like that, in (2019) 2 SCC 329 in the matter of Roshina T v. Abdul Azeez K.T, the dispute between private parties relating to property rights involving question of law, where the High Court has exercised the jurisdiction by entertaining the writ petition. The alternative remedy by way of suit in Civil court or proceeding under Section145 of Cr.P.C before a criminal court since was available, should have been directed to be invoked, therefore, the entertaining of the writ petition was not maintainable, where the Hon’ble Supreme Court has held as follows:"14. It has been consistently held by this Court that a regular suit is the appropriate remedy for settlement of the disputes relating to property rights between the private persons. The remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of statutory authority is alleged. In such cases, the Court has jurisdiction to issue appropriate directions to the authority concerned. It is held that the High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available. This Court has held that it is not intended to replace the ordinary remedies by way of a civil suit or application available to an aggrieved person. The jurisdiction under Article 226 of the Constitution being special and extraordinary, it should not be exercised casually or lightly on mere asking by the litigant. (See Mohan Pande vs. Usha Rani, 1992 (4) SCC 61 and Dwarka Prasad Agrawal vs BD Agrawal, (2003) 6 SCC 230).15. In our view, the writ petition to claim such relief was not, therefore, legally permissible. It, therefore, deserved dismissal in limine on the ground of availability of an alternative remedy of filing a civil suit by respondent No. 1 (writ petitioner) in the Civil Court..........19. We do not agree with the submissions of the learned counsel for respondent 1 for the reasons that first there did exist a dispute between the appellant and respondent 1 as to who was in possession of the flat in question at the relevant time; Second, a dispute regarding possession of the said flat between the two private individuals could be decided only by the Civil Court in civil suit or by the Criminal Court in Section 145 Cr.P.C proceedings but not in the writ petition under Article 226 of the Constitution."50. In yet another decision of the Hon’ble Supreme Court reported in (2015) 16 SCC 530 in the matter of Janet Jeyapaul v. SRM University, the issue has been exhaustively discussed, where, the Hon’ble Apex Court has recorded the submission made by the learned Amicus Curiae, on the point, whether the writ can be issued against a person or body of person or authority based on the composition of the body or authority or person or based on the duty cast upon them or the function or duty exercisable by them being the public one or a private party. The Hon’ble Apex Court in the said Judgment has recorded the following:"15. Submissions of Mr Harish Salve were manifold. According to him, while deciding the question as to whether the writ lies under Article 226 of the Constitution of India against any person, juristic body, organisation, authority, etc., the test is to examine in the first instance the object and purpose for which such body/authority/organisation is formed so also the activity which it undertakes to fulfil the said object/purpose.16. Pointing out from various well-known English commentaries such as de Smith's Judicial Review, 7th Edn.; H.W.R. Wade and C.F. Forsyth's Administrative Law, 10th Edn.; Michael J. Beloff in his article “Pitch, Pool, Rink,……Court?: Judicial Review in the Sporting World”, 1989 Public Law 95; English decisions in Breen v. Amalgamated Engg. Union [Breen v. Amalgamated Engg. Union, (1971) 2 QB 175: (1971) 2 WLR 742: (1971) 1 All ER 1148 (CA)] ; Reg. v. Panel on Take-overs and Mergers, ex p Datafin Plc. [Reg. v. Panel on Take-overs and Mergers, ex p Datafin Plc., 1987 QB 815: (1987) 2 WLR 699: (1987) 1 All ER 564 (CA)] ;Evans v. Newton [Evans v. Newton, 1966 SCC OnLine US SC 1: 15 L Ed 2d 373: 382 US 296 (1966)] ; and of this Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v.V.R. Rudani [Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691] and Zee Telefilms Ltd. v. Union of India [Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649], Mr Harish Salve submitted that perusal of these authorities/decisions would go to show that there has been a consistent view of all the learned authors and the courts all over the world including in India that the approach of the Court while deciding such issue is always to test as to whether the body concerned is formed for discharging any “public function” or “public duty” and if so, whether it is actually engaged in any public function or/and performing any such duty.17. According to the learned counsel, if the aforesaid twin test is found present in any case then such person/body/organisation/authority, as the case may be, would be subjected to writ jurisdiction of the High Court under Article 226 of the Constitution.18. The learned Senior Counsel elaborated his submission by pointing out that the expression “any person or authority” used in Article 226 is not confined only to statutory authorities and instrumentalities of the State but may in appropriate case include any other person or body performing “public function/duty”. The learned counsel urged that emphasis is, therefore, always on activity undertaken and the nature of the duty imposed on such authority to perform and not the form of such authority. According to Mr Harish Salve, once it is proved that the activity undertaken by the authority has a public element then regardless of the form of such authority it would be subjected to the rigor of writ jurisdiction of Article 226 of the Constitution.19. The learned counsel then urged that in the light of several decisions of this Court, one cannot now perhaps dispute that “imparting education to students at large” is a “public function” and, therefore, if any body or authority, as the case may be, is found to have been engaged in the activity of imparting education to the students at large then irrespective of the status of any such authority, it should be made amenable to writ jurisdiction of the High Court under Article 226 of the Constitution.20. The learned counsel further pointed out that the case in hand clearly shows that Respondent 1, a juristic body, is engaged in imparting education in higher studies and what is more significant is that Respondent 1 is conferred with a status of a “Deemed University” by the Central Government under Section 3 of the UGC Act. These two factors, according to Mr Harish Salve, would make Respondent 1 amenable to writ jurisdiction of the High Court under Article 226 because it satisfies the twin test laid down for attracting the rigor of writ jurisdiction of the High Court..........26. This Court examined the legal issue in detail. K. Jagannatha Shetty, J. speaking for the Bench agreed with the view taken by the High Court and held as under: (Andi Mukta case [Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691], SCC pp. 696-98 & 700, paras 11-12, 15 & 20)“11. Two questions, however, remain for consideration: (i) the liability of the appellants to pay compensation under Ordinance 120-E and (ii) the maintainability of the writ petition for mandamus as against the management of the college. …12. The essence of the attack on the maintainability of the writ petition under Article 226 may now be examined. It is argued that the management of the college being a trust registered under the Bombay Public Trusts Act is not amenable to the writ jurisdiction of the High Court. The contention in other words, is that the trust is a private institution against which no writ of mandamus can be issued. In support of the contention, the counsel relied upon two decisions of this Court: (a) Vaish Degree College v. Lakshmi Narain [Vaish Degree College v. Lakshmi Narain, (1976) 2 SCC 58: 1976 SCC (L&S) 176] and (b) Dipak Kumar Biswas v. Director of Public Instruction [Dipak Kumar Biswas v. Director of Public Instruction, (1987) 2 SCC 252: (1987) 3 ATC 505]. In the first of the two cases, the respondent institution was a Degree College managed by a registered cooperative society. A suit was filed against the college by the dismissed principal for reinstatement. It was contended that the Executive Committee of the college which was registered under the Cooperative Societies Act and affiliated to Agra University (and subsequently to Meerut University) was a statutory body. The importance of this contention lies in the fact that in such a case, reinstatement could be ordered if the dismissal is in violation of statutory obligation. But this Court refused to accept the contention. It was observed that the management of the college was not a statutory body since not created by or under a statute. It was emphasised that an institution which adopts certain statutory provisions will not become a statutory body and the dismissed employee cannot enforce a contract of personal service against a non-statutory body.***15. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty, mandamus will not lie. These are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants trust was managing the affiliated college to which public money is paid as government aid. Public money paid as government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. [See M.P. Jain, The Evolving Indian Administrative Law (1983) 226] So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party.***20. The term ‘authority’ used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as nonfundamental rights. The words ‘any person or authority’ used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists, mandamus cannot be denied.”27. This issue was again examined in great detail by the Constitution Bench in Zee Telefilms Ltd. v. Union of India [Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649] wherein the question which fell for consideration was whether the Board of Control for Cricket in India (in short “BCCI”) falls within the definition of “State” under Article 12 of the Constitution. This Court approved the ratio laid down in Andi Mukta case [Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v.V.R. Rudani, (1989) 2 SCC 691] but on facts of the case held, by majority, that BCCI does not fall within the purview of the term “State”. This Court, however, laid down the principle of law in paras 31 and 33 as under: (Zee Telefilms Ltd. case [Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649], SCC p. 682)“31. Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scotfree merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for the violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution, which is much wider than Article 32.***33. Thus, it is clear that when a private body exercises its public fu

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nctions even if it is not a State, the aggrieved person has a remedy not only under the ordinary law but also under the Constitution, by way of a writ petition under Article 226.”28. It is clear from a reading of the ratio decidendi of the judgment in Zee Telefilms Ltd. [Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649] that firstly, it is held therein that BCCI discharges public duties and secondly, an aggrieved party can, for this reason, seek a public law remedy against BCCI under Article 226 of the Constitution of India."51. Ultimately in the said decision, the Apex Court has held that, the writ would lie against a Deemed University which was declared so by the University Grants Commission under the UGC Act and the imparting of higher education is a public function or public duty. Therefore against such Deemed University, writ can very well be issued under Article 226, therefore the writ petition was maintainable.52. However the principle enunciated in that decision also is that, if the person or body of persons or authority is discharging only a private function or duty and not public function or duty, certainly those authority cannot be brought under or being amenable to the extraordinary jurisdiction of the High Court under Article 226 of the Constitution.53. Here in the case in hand, no doubt the corporate debtor is a private body doing no public duty and public function, and how a liquidation process can be undertaken has been spelt out exhaustively in the IBC, 2016 and accordingly the process is on i.e., the liquidation process is going on, where the liquidator, having been named, has been discharging his duties and while discharging his duty as part of his duty, he had to reduce certain strength of the staff / employees of the corporate debtor and such decision culminated in the discharge of duties of these petitioners through the impugned orders.54. Therefore as against such impugned orders, if the petitioners are aggrieved and if at all they are precluded from initiating or filing any civil suit in a civil court against the corporate debtor, they can very well invoke sub-section 5 of Section 60 of the IBC, 2016 as discussed above and accordingly they can seek the remedy.55. When such a remedy is available before the petitioners, where the adjudicating authority, namely NCLT has got jurisdiction to entertain such petition, non-invocation of such a remedy, which is statutorily available to these petitioners, would not entile them to invoke Article 226 of the Constitution before this Court for maintaining these writ petitions.56. Therefore in this context, the Judgment referred to by the learned Senior counsel in Embassy Property Pvt., Ltd., case may not be applicable to these cases and therefore the principle enunciated in the celebrity judgment of Embassy Property Pvt., Ltd., (cited supra) is related to a different subject, where the NCLT, passed orders against the Karnataka Government, where, the Karnataka Government preferred writ petition before the Karnataka High Court under Article 226 of the Constitution which was very well acceptable and only in that context, the said decision was made. Therefore the said Judgment in Embassy Property Pvt., Ltd., case would not advance the case of the petitioners herein to maintain these writ petitions.57. Therefore this Court has no hesitation to hold that, the writ petitioners cannot invoke Article 226 of the Constitution against the impugned orders, which is purely a dispute between the petitioners who are the erstwhile employees of the corporate debtor, i.e., the first respondent and the corporate debtor which, either before liquidation or thereafter does not do any public duty or public function, hence the cause of action said to have arisen pursuant to the impugned orders of discharge of duties of these petitioners, would not be amenable to the writ jurisdiction under Article 226 of the Constitution, therefore these writ petitions are not maintainable before this Court.58. In the result, the Office objection raised in this regard is sustainable, accordingly these writ petitions are rejected at the SR stage as not maintainable. The objection of the Registry is answered accordingly.59. It is made clear that, only for the purpose of deciding the maintainability question, the aforesaid discussion has been made by this Court, therefore the same cannot be treated as a view of this Court, on the merits of the issue raised by the petitioners, challenging the impugned orders of discharge of their duty.60. As a sequel, the Registry is directed to return the case papers with all originals to the learned counsel appearing for the petitioners, after retaining photo copy of those documents for the record purpose, of course on acknowledgment.
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