Mr. Justice Rajesh Bindal

The High Court should not entertain a petition under Article 226 of the Constitution particularly when an alternative statutory remedy is available – PHR Invent Educational Society Vs. UCO Bank and Ors. – Supreme Court

Hon’ble Supreme Court held that:

(i) It could thus be seen that the Court has strongly deprecated the practice of entertaining writ petitions in such matters. It can thus be seen that it is more than a settled legal position of law that in such matters, the High Court should not entertain a petition under Article 226 of the Constitution particularly when an alternative statutory remedy is available.
(ii) where the statutory authority has not acted in accordance with the provisions of the enactment in question;
(iii) it has acted in defiance of the fundamental principles of judicial procedure;
(iv) it has resorted to invoke the provisions which are repealed; and
(v) when an order has been passed in total violation of the principles of natural justice.
(vi) It has however been clarified that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance.

The High Court should not entertain a petition under Article 226 of the Constitution particularly when an alternative statutory remedy is available – PHR Invent Educational Society Vs. UCO Bank and Ors. – Supreme Court Read Post »

The right of Borrower to redeem would be available till the sale certificate is registered and the possession is handed over after which the Borrower will not have a right for redemption under the unamended provision of Section 13(8) of the SARFAESI Act, 2002 – Surinder Pal Singh Vs. Vijaya Bank & Ors. – Supreme Court

Hon’ble Supreme Court held that the net result is that the right of the Borrower to redeem would be available till the sale certificate is registered and the possession is handed over after which the Borrower will not have a right for redemption under the unamended provision of Section 13 (8) of the SARFAESI Act.

The Court held that we are not inclined to interfere with the impugned judgment and order passed by the High Court dismissing the Writ Petition. However, in the interest of justice and to do equity between the parties, we are of the view that the borrowers must pay a reasonable amount to the Auction Purchaser.

The right of Borrower to redeem would be available till the sale certificate is registered and the possession is handed over after which the Borrower will not have a right for redemption under the unamended provision of Section 13(8) of the SARFAESI Act, 2002 – Surinder Pal Singh Vs. Vijaya Bank & Ors. – Supreme Court Read Post »

Powers under Section 482 of Code of Criminal Procedure, 1973 can be exercised by the High Court in case when it comes across unimpeachable and incontrovertible evidence to indicate that the partner of the firm did not have any concern with the issuance of cheques – Riya Bawri etc. Vs. Mark Alexander Davidson & Ors. – Supreme Court

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Powers under Section 482 of Code of Criminal Procedure, 1973 can be exercised by the High Court in case when it comes across unimpeachable and incontrovertible evidence to indicate that the partner of the firm did not have any concern with the issuance of cheques – Riya Bawri etc. Vs. Mark Alexander Davidson & Ors. – Supreme Court Read Post »

There is no ground available to reject an application u/s 7 of IBC except NCLT finds that the debt has not become due and payable, the decision in ‘Vidarbha Industries’ cannot be read and understood as taking a view which is contrary to the view taken in ‘Innoventive Industries’ and ‘E.S. Krishnamurthy’ – M. Suresh Kumar Reddy Vs. Canara Bank & Ors. – Supreme Court

Hon’ble Supreme Court held that once NCLT is satisfied that the default has occurred, there is hardly a discretion left with NCLT to refuse admission of the application under Section 7. Default is defined under Section 3(12) of the Code. Thus, even the non¬-payment of a part of debt when it becomes due and payable will amount to default on the part of a Corporate Debtoṛ. In such a case, an order of admission under Section 7 of the Code must follow. If the NCLT finds that there is a debt, but it has not become due and payable, the application under Section 7 can be rejected. Otherwise, there is no ground available to reject the application.
The decision in the case of Vidarbha Industries cannot be read and understood as taking a view which is contrary to the view taken in the cases of Innoventive Industries and E.S. Krishnamurthy. The view taken in the case of Innoventive Industries still holds good.

There is no ground available to reject an application u/s 7 of IBC except NCLT finds that the debt has not become due and payable, the decision in ‘Vidarbha Industries’ cannot be read and understood as taking a view which is contrary to the view taken in ‘Innoventive Industries’ and ‘E.S. Krishnamurthy’ – M. Suresh Kumar Reddy Vs. Canara Bank & Ors. – Supreme Court Read Post »

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