Judicial immunity under the Judges (Protection) Act, 1985 is upheld, but the court emphasizes the need for accountability and the exhaustion of alternative remedies before seeking writ relief.

ORDER :

(PER RAVINDRA V GHUGE, J)

1. On 12th November, 2024, the Bench (Coram : A.S. Chandurkar & Rajesh Patil, JJ.), referred to the order dated 18th July, 2024 passed in Interim Application (L) No.22605 of 2024 with Interim Application (L) No.22609 of 2024, and directed that this Petition should not be listed before the said Bench.

2. On 13th November, 2024, the Bench (Coram: M.S. Sonak and Jitendra Shantilal Jain, JJ), recorded that the matter would not be listed before the Bench of which Justice Jain is a member.

3. Pursuant to the above, the Hon’ble the Chief Justice of the Bombay High Court has placed this matter before this Bench.

4. On 27th November, 2024, we considered the oral submissions of the learned Advocate Mr. Nedumpara for almost three hours, from 12:00 noon to 1:30 p.m. and from 2:30 p.m. to 4:00 p.m. As Respondent Nos. 1 to 6, 7, and 18 had appeared suo moto, they were unable to file their affidavit and reply. We permitted them to file their written notes/bullet points or affidavit in reply, considering extensive submissions of Mr. Nedumpara. On the request of Mr. Nedumpara, that a hearing after two days was inconvenient to him, we posted the matter on 4th December, 2024, only to receive the bullet points/submissions of the said Respondents.

5. The Petitioner has arrayed 25 Respondents, which include the learned members of the NCLT-1, Mumbai, Registrar of Companies, Ministry of Corporate Affairs, National Stock Exchange of India Ltd., Ministry of Finance, Ministry of Micro Small and Medium Enterprises, the Reserve Bank of India, through its Governor, etc.

6. The Petitioner has put forth the following prayers in this Writ Petition :-

“a) Declare that Section 3 of the Judges (Protection) Act of 1985 is unconstitutional and void inasmuch as it affords absolute immunity to judicial officers even where they have acted unfairly and wilfully denied justice;

b) Declare that the concept of absolute judicial immunity is antithetical to the concept of rule of law, nay, equality before law and equal protection of law, and further that immunity is available only where a court or tribunal has acted bona fide, lest a litigant who is a victim of wilful denial of justice will be denied the ordinary remedy available to her in tort;

c) To declare that Respondent no.22 and 23, namely, the Hon’ble Shri Justice VG Bhist, Member Judicial and Hon’ble Shri Prabhat Kumar Member (T) of the NCLT-1, Mumbai, are a coram non judice for the twin grounds of (a) bias and hostility to the Petitioner and also (b) lacking investiture of the jurisdiction to adjudicate upon the inter se rights and obligations arising out of the MSMED Act, and that the orders dated 15.07.2024 and 29.10.2024 in the purported exercise of their jurisdiction under Section 7 of the IBC is null and void ab initio, still born, one which never ever existed in the eyes of law;

d) In furtherance of relief (c) above, to issue a Writ in the nature of Certiorari or any other appropriate Writ, Order or Direction, calling for the entire records and proceedings leading to the orders – Exhibit-G dated 15.7.2024 and Exhibit-O dated 29.10.2024 in CP(IB) No.322/2023 being passed by the NCLT Mumbai Bench -1, in the purported exercise of that Tribunal’s jurisdiction under Section 7 of the IBC, 2016 and to quash and set aside the same;

e) to declare that the Petitioner being an MSME within the meaning of the MSMED Act of 2006 and Notification dated 29.05.2015 issued by the Central Government under Section 9 thereof, as also the circulars and guidelines issued by the Reserve Bank of India under Section 10 thereof, which provides for a mechanism of resolution of stress, no proceedings for recovery under the SARFAESI Act, RDB Act, N.I. Act, will lie, except in the manner contemplated under the said notification, in particular Paragraph 5(4)(iii) of the same;

f) to declare that the MSMED Act, 2006 in so far as it has not created a special forum/tribunal to adjudicate the inter-se rights and obligations/