The availability of an alternative statutory remedy does not necessarily preclude the jurisdiction of the court under Article 226 of the Constitution of India.

JUDGMENT :

The petitioners are asserted to be the members of the 'Kerala Chamber of Commerce and Industry' ('KCCI' for short) which is stated to be a Company originally registered under Section 25 of the Companies Act, 1956.

2. The petitioners impugns Ext.P6 order issued by the 'National Company Law Tribunal' ('NCLT' for short), issued by it invoking power under Section 7 of the Insolvency and Bankruptcy Code, 2016 ('IBC' for short) quathe 'KCCI'; and impute that the said order is the product of a fraud committed by it, in conjunction with the Financial Institution, which approached the said Tribunal.

3. Sri.D.Anil Kumar – learned counsel for the petitioners, explained that the controversy has its genesis in the fact that the 'KCCI' obtained certain financial facilities from the South Indian Bank Ltd, which was then declared by the latter as a Non-Performing Asset. He submitted that the Bank, thereupon, initiated action under the Recovery of Debts and Bankruptcy Act, 1993 before the jurisdictional Debt Recovery Tribunal ('DRT' for short); and also initiated proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act ('SARFAESI Act' for short). He pointed out that, in the meanwhile, and somewhere along the time, the secured debt appears to have been assigned by the Bank in favour of the 4th respondent -which is a statutorily established 'Asset Reconstruction Company' (ARC); and that they, suppressing the afore actions taken by the Bank, approached the 'NCLT', to obtain Ext.P16 order. He vehemently argued that Ext.P16 is thus an order issued by the 'NCLT' without being aware of the foundational facts; and hence, that it can only be construed to be the product of fraud and misrepresentation.

4. Sri.D.Anil Kumar then went on to explain that this is causing his clients individual prejudice because, they are already litigating against the 'KCCI' before the same forum, alleging suppression and mismanagement; but that, on account of Ext.P16, in one sweep, even those proceedings are now incapacitated from being taken forward due to the rigour of the consequent statutory moratorium. Sri.D.Anil Kumar then added that there are also proceedings initiated against the 'KCCI' by the Enforcement Directorate, under the 'Prevention of Money Laundering Act' ('PMLA Act' for short); and that even this has not been taken into account by the 'NCLT', while Ext.P16 has been issued. He thus prayed that Ext.P16 be set aside.

5. Sri.Akhil Suresh – learned counsel appearing for the Resolution Professional, countered the afore submissions of Sri.D.Anil Kumar contending that this Writ Petition is not maintainable because, the petitioners had a statutory right under Section 61 of the 'IBC', to have filed an appeal against Ext.P16; and argued that, even going by the pleadings on record, the petitioners have chosen not to invoke any such remedy, but to have incohately submitted in paragraph 13 of the writ petition, that “fraud and collusion on the part of IRP came to the notice of petitioners...only recently” (sic). He then showed me that, going by further averments in the said paragraph, the petitioners maintain that an appeal before the 'National Company Law Appellate Tribunal' (NCLAT) is not “an effective remedy in the peculiar facts of the case” (sic); and predicated that, therefore, since they have, in full violation, refused and failed to invoke the statutory remedy available to them, they could not have approached this Court through a Writ Petition under Article 226 of the Constitution of India.

6. On the merits of the matter, Sri.Akhil Suresh submitted that, it is now well settled -through the various judgments of this Court and that of the Honourable Supreme Court – that mere initiation of certain other proceedings by the Bank in the past, including before the 'DRT' or under the 'SARFAESI Act', would not be an inhibiting factor for the 'NCLAT' in exercising their discretion under Section 7 of the 'IBC'