Point of Law: Jurisdiction of the Tribunal, the writ petition under Article 226 is maintainable and there is no necessity or purpose for relegating the petitioner to the alternate remedy. Nor is it necessary to decide on the question whether an appeal is maintainable under the IBC against the order of the Tribunal on a preliminary issue regarding jurisdiction.

JUDGMENT :

The issues involved in these writ petitions are intrinsically connected and the parties are also same. The writ petitions are hence heard and disposed of together. The reference to the parties and exhibits is, as they appear in W.P.(C)No.27636 of 2020.

2. Heard Sri Joseph Kodianthara, learned Senior Advocate instructed by Sri Isaac Thomas on behalf of the petitioner in W.P. (C)No.27636 of 2020 and Sri Hari Kumar G.Nair, learned counsel for the petitioner in W.P.(C)No.14158 of 2021, who is the 2nd respondent in W.P.(C)No.27636 of 2020.

THE DISPUTE IN BRIEF

W.P.(C)No.27636 of 2020

3. This writ petition has been filed challenging the order of the Adjudicating Authority under the Insolvency and Bankruptcy Code (hereinafter referred to as 'IBC'). The facts that will be relevant for deciding the case are as follows;

4. The petitioner is a Private Limited Company engaged in the activities of developing software and promoting advancement in the field of Information Technology. The 2nd respondent has filed IBA/34/KOB/2020 before the 1st respondent claiming to be an operational creditor and arraying the petitioner as a corporate debtor under the provisions of the IBC. The case of the 2nd respondent is that amounts due to the 2nd respondent have not been paid by the petitioner. According to the petitioner, the petition is not maintainable before the 1st respondent. The petitioner has disputed the alleged debts in their counter statement filed before the 1st respondent. According to them, amounts are actually due from the 2nd respondent to the petitioner. It is submitted that the 2nd respondent is a former Director and shareholder, who had sold the entirety of the shares after stepping down as Director and the application has been filed only as a disgruntled Director seeking to discredit the company and its shareholders. The petitioner preferred I.A.No.175/KOB/2020 under Rule 32 of the National Company Law Tribunal Rules ('NCLT Rules' for short) praying that the maintainability of the application may be considered as a preliminary issue. Ext.P4 is the application. Reliance was placed on notification No.S4/1205 (E) dated 24.3.2020 published by the Ministry Corporate Affairs, Government of India, whereby Section 4 of the IBC was amended and the minimum amount of default was increased to Rs.1 Crore. It is submitted that unless the application relates to a default of an amount of more than Rs.1 Crore, the same will not be maintainable before the 1st respondent. The National Company Law Tribunal ('NCLT' for short) has on 01.12.2020 issued Ext.P7 order in I.A.No.175/KOB/2020 finding that the application filed by the 2nd respondent is maintainable. It can be seen from Ext.P7 order that the reasoning of the 1st respondent is that the notification under Section 4 will not save the petitioner from the initiation of insolvency proceedings with respect to defaults which had taken place before the pandemic and the resultant financial crisis. According to the petitioner, on 25.9.2020 on which date the application which is seen dated 7.3.2020 was filed before the 1st respondent, the Government order dated 24.03.2020 has already come into force and the amount claimed in the application is less than Rs.1 Crore. It is pointed out that the Form 3 notice contemplated under Sections 8 and 9 of the IBC was served on the petitioner only on 02.03.2020 and the complaint could have been filed only after the mandatory period of 10 days after receipt of the Form 3 notice. It is submitted that even if the date on the complaint is to be taken as the relevant date, the complaint could not have been filed on 07.03.2020, which is not after the 10 days stipulated in the statute. Several other defects are also pointed out. However, the main issue revolves around the question whether Ext.P5 which is the amendment of Section 4 will be applicable to cases where the default had occurred prior to the date of amendment.

5. The prayer in this writ petition is for a declaratio