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IN THE HIGH COURT OF MADRAS (MADURAI BENCH)
R. Suresh Kumar, J.
Beryl Selvamani and Ors. - Appellant
Versus
St. John Freight Systems Limited and Ors. - Respondent
W.P. (MD) SR. Nos. 22360, 22331, 22334, 22337, 22340, 22343, 22346, 22350, 22353 and 22363 of 2020
Decided On : 23-10-2020
Constitution of India,1950 - Articles 226, 227 , 32 and 12 - Civil Procedure Code,1908 - Section 21 - Criminal Procedure Code,1973 - Section 145 - IB Code, 2016 - Sections 7, 33(2) , 53 , 16, 17, 18, 20, 22, 25, 28, 33, 34, 35, 60, 61, 62 and 63 - Powers and duties of the liquidator - Incharge of corporate debtor in liquidation process - Carry on the business of the corporate debtor for its beneficial liquidation as he considers necessary - Whether petitioners has got remedy to approach 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 - Whether would include the prospective litigation as that of one now presented or filed by these petitioners - Whether order passed by Karnataka High Court entertaining a writ petition from the Government of Karnataka against order passed by NCLT without exhausting statutory appellate remedy by preferring appeal before the NCLAT was acceptable or justifiable or not - Whether 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 - Whether the writ petition under Article 32 filed before Supreme Court for enforcement of personal contractual right, was maintainable or not - whether the writ can be issued against a person or body of person or authority based on composition of the body or authority or person or based on duty cast upon them or function or duty exercisable by them being public one or a private party - Whether writ lies under Article 226 of Constitution of India against any person, juristic body, organisation, authority - Process of carrying out the business of the corporate debtor for its beneficial liquidation - Respondent is a company registered under 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 Resolution Professional/Liquidator, under the Insolvency and Bankruptcy Code - second respondent is the statutory authority appointed by National Company Law Tribunal, vide order under Insolvency and Bankruptcy Board of India – Held, Judgment referred to by the learned Senior counsel in Embassy Property 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, NCLT, passed orders against the Karnataka Government, where, 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, said decision was made - Therefore the said Judgment in Embassy Property Pvt., Ltd., case would not advance the case of petitioners to maintain these writ petitions - Court has no hesitation to hold that, the writ petitioners cannot invoke Article 226 of the Constitution against the impugned orders, is purely a dispute between the petitioners who are erstwhile employees of the corporate debtor, i.e., first respondent and the corporate debtor which, either before liquidation or thereafter does not do any public duty or public function cause of action said to have arisen pursuant to the impugned orders of discharge of duties of these petitioners, would not be amenable to writ jurisdiction under Article 226 of Constitution, therefore these writ petitions are not maintainable before this Court - Only for the purpose of deciding the maintainability question, aforesaid discussion has been made by this Court same cannot be treated as a view of this Court – Ordered Accordingly
ORDER :
R. Suresh Kumar, J.
1. 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:
(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. M
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