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High Court of KeralaSingle JudgeDisposed of

Ashique Ponnampparambath and Shameena P.P. v. BMW India Financial Services Private Limited, The National Company Law Tribunal, and M/S KOYENCO Autos Private Limited

Case / Petition Number:WP(C) No. 22280 of 2021

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P.V. Kunhikrishnan
Judgment Date
2021-11-16
Court Decision / Holding
The writ petition is disposed of. The interim order dated 13.10.2021 will continue for a period of three weeks from today; the petitioners are free to obtain necessary orders from the NCLAT in the meanwhile; all contentions of the petitioners and respondents are left open; the court has not considered the matter on merit and the disposition is to facilitate the petitioners to approach the appellate tribunal.
Final Disposition
Disposed of

Parties to the Case

Appellants / Petitioners

  • Ashique Ponnampparambath
  • Shameena P.P.

Respondents

  • BMW India Financial Services Private Limited
  • The National Company Law Tribunal
  • M/S. KOYENCO Autos Private Limited

Legal Representation & Advocates

Counsels for Petitioners

  • • G.HARIKUMAR (GOPINATHAN NAIR)
  • • JOSEPH KODIANTHARA (SR.)
  • • AKHIL SURESH
  • • ANU BALAKRISHNAN NAMBIAR

Counsels for Respondents

  • • P.MARTIN JOSE
  • • P.PRIJITH
  • • THOMAS P.KURUVILLA
  • • HARIKRISHNAN S.

Case Synopsis & Summary

The writ petition (W.P.(C) No. 22280 of 2021) before the Kerala High Court, filed by Ashique Ponnampparambath and Shameena P.P., challenges an order (Exhibit P7) issued in a matter involving BMW India Financial Services Private Limited, KOYENCO Autos Private Limited, and the NCLT. The petitioners seek certiorari and mandamus to quash or restrain the Exhibit P7 order and to preclude further action, arguing that an appeal already lies before the National Company Law Appellate Tribunal (NCLAT) and that an interim stay should be extended to facilitate relief. The respondents contend maintainability concerns, asserting that the writ petition is not maintainable given the existence of an adequate alternative remedy in the form of the appellate route before NCLAT, and they rely on precedents such as Embassy Property Developments v. State of Karnataka, Sesh Nath Singh v. Baidyabati Co-op Bank, and Sulochana Gupta v. RBG Enterprises, as well as a separate WP(C) No. 8257/2021. After hearing, the learned Judge holds that the writ petition is not maintainable due to the availability of an alternative remedy which the petitioners have already pursued. To mitigate potential prejudice, the court extends the interim order for three weeks and permits the petitioners to seek orders from NCLAT, explicitly stating that the merits are not decided and all contentions are left open. The petition is thus disposed of without adjudication on the substantive issues.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submit that Ext. P7 (the challenged order) should be quashed or stayed via mandamus and that they have already filed an appeal before the NCLAT; an interim stay should be extended to enable relief and the petition should be entertained despite an alternative forum, arguing that no adequate remedy is available at this stage and that the writ jurisdiction can be invoked in exceptional circumstances.

Contentions of Respondents

The respondents contend that the writ petition is not maintainable as an alternative remedy exists, specifically an appeal to NCLAT; they rely on precedents including Embassy Property Developments v. State of Karnataka, Sesh Nath Singh v. Baidyabati Co-op Bank, Sulochana Gupta v. RBG Enterprises, and WP(C) No. 8257/2021; they urge dismissal or denial of interim relief on maintainability grounds.

Cited Precedents (4)

Case NameCitationTreatmentExplanation
Embassy Property Developments Private Limited v. State of Karnataka and others(2020) 13 SCC 308Mentioned OnlyCited in the context of maintainability but the judgment does not state it is followed or distinguished.
Sesh Nath Singh and Another v. Baidyabati Sheoraphuli Co-operative Bank Ltd. And Another[2021 SCC Online SC 244]Mentioned OnlyCited as authority on maintainability without explicit treatment in the ruling.
Sulochana Gupta and Another v. RBG Enterprises Private Ltd.[2020 SCC Online Ker 4153]Mentioned OnlyCited in argument; no explicit discussion of its ratio in the decision.
W.P.(C) No. 8257/2021—Mentioned OnlyCited as related matter; no merits discussion in the judgment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 16[TH] DAY OF NOVEMBER 2021 / 25TH KARTHIKA, ``` ## **`1943`** ## **`WP(C) NO. 22280 OF 2021`** ## **`PETITIONER/S:`** ``` 1ASHIQUE PONNAMPARAMBATH AGED 51 YEARS MEMBER OF THE SUSPENDED BOARD OF DIRECTORS AND ERSTWHILE MANAGING DIRECTOR OF KOYENCO AUTOS PRIVATE LIMITED, PONNAMPARAMBATH HOUSE, KONAD BEACH, WEST HILL POST, CALICUT - 673005, KERALA. 2SHAMEENA P.P, MEMBER OF SUSPENDED BOARD OF DIRECTORS, KOYENCO AUTOS PRIVATE LIMITED, KONAD BEACH, WEST HILL POST, CALICUT - 673005, KERALA. ``` ``` BY ADVS. G.HARIKUMAR (GOPINATHAN NAIR) JOSEPH KODIANTHARA (SR.) AKHIL SURESH ANU BALAKRISHNAN NAMBIAR ``` ## **`RESPONDENT/S:`** - `1 BMW INDIA FINANCIAL SERVICES PRIVATE LIMITED THE OBEROI CORPORATE TOWER, BUILDING NO.II, FIRST FLOOR, DLF CYBER CITY, PHASE II, GURUGRAM - 122022, REPRESENTED BY ITS DIRECTOR, MS. RITU CHANDY.` - `2 THE NATIONAL COMPANY LAW TRIBUNAL, COMPANY LAW BHAVAN, KAKKANAD, KOCHI - 682030.` - `3 M/S. KOYENCO AUTOS PRIVATE LIMITED, 53C, KOYENCO HOUSE, WEST HILL P.O, KOZHIKODE, KERALA - 673005, REPRESENTED BY THE INTERIM RESOLUTION PROFESSIONAL MR. SANKAR P. PANICKER.` -2- W.P.(C). No. 22280 of 2021 ``` BY ADVS. P.MARTIN JOSE P.PRIJITH THOMAS P.KURUVILLA HARIKRISHNAN S. ``` ## **`OTHER PRESENT:`** ``` SRI.DIWAKAR MAHESWARI FOR R1 ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -3- W.P.(C). No. 22280 of 2021 ## **P.V.KUNHIKRISHNAN, J.** ===================================================== W.P.(C) No.22280 of 2021 ============================================================= Dated this the 16[th] day of November, 2021 ## **JUDGMENT** The above writ petition is filed with following prayers: “a) issue a writ of certiorari or other appropriate writs, directions or orders calling for the records leading upto Exhibit P7 order and quash the same. b) issue a writ of mandamus or other appropriate writs, directions or orders restraining the Respondents from proceeding further with Exhibit P7. c) grant such other reliefs as this Honourable Court may deem fit, just and proper in the circumstances of the case.” 2. When this writ petition came up for consideration on 13.10.2021, this Court passed the following order. “Admit. Issue notice to the respondents by e-mail. The petitioner shall also take out notice by speed post. Heard the learned Senior Counsel for the petitioners. It is submitted by the learned Senior Counsel that the National Company Law Appellate -4- W.P.(C). No. 22280 of 2021 Tribunal is not functional on account of Dussehra and Milad-Un-Nabi holidays and therefore, the petitioner is not in a position to challenge Ext.P7 order before the Appellate Tribunal. In view of the above, there will be an interim stay of Ext.P7 for a period of one month. In the meantime, the petitioner shall move the Appellate Tribunal. Post after three weeks.” 3. Heard the learned counsel for the petitioners and the learned counsel for the respondents. 4. The learned Senior Counsel appearing for the petitioner ssubmitted that challenging Ext.P7 order, an appeal is already filed and the matter is pending before the National Company Law Appellate Tribunal, Delhi (for short ‘NCLAT’). The learned Senior Counsel submitted that for facilitating the petitioners to get appropriate orders from the tribunal, the interim order may be extended for a short period and the writ petition itself can be disposed of. 5. On the other hand, the learned counsel for the 1[st] respondent submitted that the writ petition itself is not -5- W.P.(C). No. 22280 of 2021 maintainable. The counsel relied on the judgments in Embassy Property Developments Private Limited v. State of Karnataka and others [(2020) 13 SCC 308], Sesh Nath Singh and Another v. Baidyabati Sheoraphuli Co-operative Bank Ltd. And Another [2021 SCC Online SC 244], Sulochana Gupta and Another v. RBG Enterprises Private Ltd. [2020 SCC Online Ker 4153] and the judgment dated 02.07.2021 in W.P.(C) No.8257/2021. The counsel also submitted that since the writ petition itself is not maintainable, the interim order may not be extended. 6. I considered the contentions of the petitioners and the 1[st] respondent. According to me, the writ petition is not maintainable because an alternative remedy is available to the petitioners. Admittedly, the petitioners already availed the alternative remedy. It is also clear from the order dated 13.10.2021 passed by this Court about the reason why this writ petition was filed. Now the appeal is filed and the matter is coming up before the NCLAT. For facilitating the petitioners to -6- W.P.(C). No. 22280 of 2021 get appropriate orders, I think the interim order can be extended for a period of three weeks from today, making it clear that I have not considered the matter on merit and the NCLAT is free to pass appropriate orders in the stay petition and in the appeal. Therefore, this writ petition is disposed of in the following manner: 1. The interim order dated 13.10.2021, which is in force now, will continue for a period of three weeks from today. 2. The petitioners are free to obtain necessary orders from NCLAT in the meanwhile. 3. All the contentions of the petitioners and respondents are left open. I make it clear that I have not considered the matter on merit and the interim order is extended only to facilitate the petitioners to approach the appellate tribunal to get appropriate orders, in the peculiar facts and circumstances of this case. sd/- ## **P.V.KUNHIKRISHNAN JUDGE** das -7- W.P.(C). No. 22280 of 2021 ## **`APPENDIX OF WP(C) 22280/2021`** ``` PETITIONER EXHIBITS ``` - `Exhibit P1 TRUE COPY OF IBA/37/KOB/2020 FILED BY THE 1ST RESPONDENT.` - `Exhibit P2 TRUE COPY OF THE FIR REGISTERED AGAINST BMW ON ACCOUNT OF THE COMPLAINT PREFERRED BY PLATINO.` - `Exhibit P3 TRUE COPY OF THE ADDENDUM AGREEMENT DATED 17.05.2017.` - `Exhibit P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED ON BEHALF OF THE 3RD RESPONDENT.` - `Exhibit P5 TRUE COPY OF THE ADDITIONAL COUNTER AFFIDAVIT FILED ON BEHALF OF THE 3RD RESPONDENT.` - `Exhibit P6 TRUE COPY OF REJOINDER FILED BY THE 1ST RESPONDENT.` - `Exhibit P7 TRUE COPY OF THE ORDER DATED 06.10.2021 IN IBA/37/KOB/2020.` - `Exhibit P8 TRUE COPY OF THE ORDER DATED 21.09.2021 OF THE HON'BLE HIGH COURT OF DELHI IN ARB. P 870/2021.` - `Exhibit P9 TRUE COPY OF THE CALENDAR OF THE HON'BLE NCLAT, CHENNAI.` - `Exhibit P10 TRUE COPY OF THE JUDGMENT IN WP(C) 11103 OF 2021.` - `Exhibit P11 TRUE COPY OF THE E-FILING RECEIPT.` - `RESPONDENT EXHIBITS` - `Exhibit R1(A) TRUE COPY OF BOARD RESOLUTION OF RESPONDENT NO.3.` - `Exhibit R1(B) TRUE COPY OF REQUEST LETTER DATED 17/05/2017.` - `Exhibit R1(C) TRUE COPY OF ADDENDUM AGREEMENT DATED 17/05/2017.` -8- W.P.(C). No. 22280 of 2021 ``` Exhibit R1(D)TRUE COPY OF DEED OF SETTLEMENT. Exhibit R1(E)TRUE COPY OF CAVEAT DATED 22/10/2021 ALONG WITH EMAIL OF ADVANCE SERVICE DATED 22/10/2021. Exhibit R1(F)TRUE COPY OF JUDGMENT IN WPC NO. 8257/2021 OF THIS HON'BLE COURT. ```