The High Court shall not entertain petitions under Art.227 when statutory remedies by way of appeal are available.

1. Heard Mr. K.N. Choudhury, the learned senior counsel representing the petitioners as well as Dr. A. Saraf, the learned senior counsel appearing for the respondents.

2. Both the petitions are filed under Art.227 of the Constitution of India challenging the order dated 05.01.2017 passed by the National Company Law Tribunal Guwahati Bench in T.A. No.14/2016 (C.A. No.907 of 2016) in T.P. No.20/397/398 / GB / 2016 (C.P. No.143 of 2015).

3. During the pendency of these two petitions, the matters went to the Hon'ble Supreme Court and the Hon'ble Supreme Court directed this Court to consider the maintainability of the petitions under Art.227 of the Constitution of India.

4. The reason for which these two petitions were filed under Art.227 of the Constitution of India is that - the National Company Law Tribunal Guwahati Bench had allowed a Petition under S.8 of the Arbitration and Conciliation Act, 1996 (for short referred to as, "the Act of 1996") and both sides were asked to go for arbitration.

5. The learned senior counsel Mr. Choudhury has submitted that what is the remedy available to a litigant when an application under S.8 of the Act of 1996 is allowed by the Tribunal. According to Mr. Choudhury, S.37(1)(a) of the Act of 1996 provides a remedy in case of refusal to refer the parties to arbitration. Mr. Choudhury has submitted that when a Petition under S.8 of the Act of 1996 is allowed and if a party to a litigation is aggrieved by the order, where he will go? Mr. Choudhury has submitted that for this reason only the petition under Art.227 of India is maintainable.

6. Mr. Choudhury further submitted that the non obstante clause in S.8 of the Act of 1996 cannot fetter the power of constitutional court to exercise its jurisdiction in appropriate case. Mr. Choudhury has relied upon the judgment of the Hon'ble Supreme Court that was delivered in Sushma Shivkumar Daga and Anr. v. Modhurkumar Ramkrishnaji Bajaj and Ors. , 2023 INSC 1081) : (AIR 2024 SC 197), which relied upon Vidya Drolia v. Durga Trading Corporation, reported in (2021) 2 SCC 1 : (AIROnLine 2020 SC 929) where it has been held that when cause of action and subject matter of dispute relates to actions in rem, the dispute stands excluded from the purview of private fora. Mr. Choudhury has pointed out that the respondent company is a public limited company and the rights of large sections of share holders are involved and therefore, it cannot be construed to be a dispute relatable to actions in personam.

7. Per contra, Mr. Saraf, the learned senior counsel, has submitted that according to S.421 of the Companies Act, 2013 , an appeal lies if a party is aggrieved by any order passed by the Company Law Tribunal.

8. In order to buttress his point, Mr. Saraf has relied upon a decision of the Hon'ble Supreme Court that was rendered in Sadhana Lodh v. National Insurance Company Ltd. and Anr. , reported in (2003) 3 SCC 524 : (AIR 2003 SC 1561). In this case, under the Motor Vehicles Act, the Apex Court has held where a statutory right to file an appeal has been provided for, it is not open for High Court to entertain a petition under Art.227 of the Constitution of India.

9. Similarly, in Mohamed Ali v. V. Jaya and Ors. , reported in (2022) 10 SCC 477 : (AIROnLine 2022 SC 988), the Hon'ble Supreme Court, in the matter of a case under Code of Civil Procedure, has held that when the trial court passes an ex parte judgment and decree, the High Court ought not exercise its revisional power under Art.226 of the Constitution of India.

10. I have considered the submissions made by the learned counsel of both sides.

11. Any party aggrieved by an order of the Tribunal