Union Christian College, Aluva v. K.C. Eapen & Others (WA Nos. 34 of 2021 and 1365 of 2020)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR ``` ``` & ``` ## **`THE HONOURABLE MR. JUSTICE SHAJI P.CHALY`** ``` TUESDAY, THE 8[TH] DAY OF MARCH 2022 / 17TH PHALGUNA, 1943 ``` ## **`WA NO. 34 OF 2021`** ``` AGAINST THE ORDER DATED 1.7.2020 IN WP(C) 13114/2020 OF HIGH COURT OF KERALA ``` ## **`APPELLANTS/RESPONDENTS NO.1,2,3 AND 4 IN WPC:`** ``` 1K.C. EAPEN AGED 81 YEARS, S/O.LATE K.E.CHERIAN, THAYYIL KANDATHIL, ANUGRAHA, INDIRA NAGAR, DEVALOKAM, KOTTAYAM - 686 004. ``` ``` 2THARIAN CHACKO AGED 70 YEARS, S/O.LATE P.C.CHACKO, 1C, RM HOMES SAPHIRE, SEMINARIPADDY, U.C.COLLEGE P.O., ALUVA - 683 102. 3SAMUEL THOMAS AGED 69 YEARS, S/O.LATE A.C.SAMUEL, NOEL PALMDALE, RAJAGIRI VALLEY P.O., KAKKANAD, KOCHI - 682 039. ``` ``` 4GEORGE PHILIP AGED 78 YEARS, S/O.LATE P.V.PHILIP, THOTTATHIL HOUSE, THOTTUMUGHAM P.O., ALUVA - 683 105. ``` ``` BY ADVS. PHILIP MATHEW SRI.K.R.JINAN SRI.M.A.SHAJI SMT.K.J.KARTHIKA ``` **W.A.Nos.34/21 & 1365/20** **2** ## **`RESPONDENTS/PETITINER & RESPONDENTS 5 TO 12 AND ADDITIONAL`** ## **`RESPONDENTS 13 TO 15:`** - `1 UNION CHRISTIAN COLLEGE, (REG.NO.001254 UNDER TRAVANCORE COMPANIES ACT 1939) HAVING ITS REGISTERED OFFICE AT ALUVA, POST BOX NO.5, ALUVA 683 102, REPRESENTED BY ITS MANAGER.` - `2 THE MALANKARA MARTHOMA SYRIAN CHURCH, (MALANKARA MARTHOMA SYRIAN CHURCH), REP. BY ITS SABHA SECRETARY, MARTHOMA SABHA OFFICE, THIRUVALLA - 689 101.` - `3 THE MALANKARA ORTHODOX SYRIAN CHURCH, REP. BY ITS SABHA SECRETARY, SABHA OFFICE, DEVALOKAM, KOTTAYAM - 686 004.` - `4 THE MALANKARA JACOBITE SYRIAN ORTHODOX CHURCH, REP. BY THE SECRETARY, EPISCOPAL SYNOD, PUTHENCRUZ - 682 308.` - `5 CHURCH OF SOUTH INDIA, REP. BY SYNOD SECRETARY, CSI CENTRE, 5 WHITES ROAD, ROYAPETTA, CHENNAI - 600 014.` - `6 REGISTRAR OF COMPANIES, KERALA, COMPANY LAW BHAVAN, BMC ROAD, THRIKKAKARA, ERNAKULAM - 682 021.` - `7 INSPECTOR GENERAL OF REGISTRATION, VANCHIYUR, TRIVANDRUM - 695 035.` - `8 REV.THOMAS JOHN, MANAGER, REPRESENTING UNION CHRISTIAN COLLEGE, ALUVA, POST BOX NO.5, ALUVA - 683 102.` - `9 NATIONAL COMPANY LAW TRIBUNAL KOCHI BENCH KUNNUMPURAM, VAZHAKKULAM, KOCHI - 682 021, REP. BY ITS REGISTRAR.` - `10 A.JAYASANKAR S/O.LATE P.K.VASUDEVAN PILLAI,` ``` VELLAYIKODATH, DESOM, ALUVA, PIN - 683 102. ``` **W.A.Nos.34/21 & 1365/20** **3** ``` 11DR.THOMAS MATHEW P. S/O.LATE P.M.THOMAS, PERAKATTUSSERIL, PUTHUVASSERY, NEDUMBASSERY P.O., ERNAKULAM - 683 589. ``` ``` 12DR.MINI ALICE W/O.JACOB MATHEW, AGED 48 YEARS, KANJIRATHUMMOOTTIL, U.C.COLLEGE P.O., ALUVA - 683 102. ``` ``` BY ADVS. SRI.RAMESH BABU(SR) SRI.SAJI VARGHESE T.G. SMT.K.S.SANTHI SRI.SANTHOSH MATHEW SMT.MARIAM MATHAI SRI.MANU S., ASG OF INDIA SRI.ROSHAN D.ALEXANDER SMT.TINA ALEX THOMAS SRI.HARIMOHAN SRI. JACOB P.ALEX, SRI.G.HARIKUMAR, SRI.S.EASWARAN SRI.MANU GOVIND ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.03.2022, ALONG WITH WA.1365/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.A.Nos.34/21 & 1365/20** **4** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR ``` ## **`&`** ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY ``` ``` TUESDAY, THE 8[TH] DAY OF MARCH 2022 / 17TH PHALGUNA, 1943 ``` ## **`WA NO. 1365 OF 2020`** ``` AGAINST THE ORDER DATED 24.9.2020 IN WP(C) 13114/2020 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/PETITIONER:`** ``` UNION CHRISTIAN COLLEGE HAVING ITS REGISTERED OFFICE AT ALUVA, POST BOX NO.5, ALUVA -683 102, REPRESENTED BY ITS MANAGER. ``` ``` BY ADVS. SRI.RAMESH BABU S., SR SRI.SAJI VARGHESE SMT.MARIAM MATHAI ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1K.C.EAPEN THAYYILKANDATHIL, ANUGRAHA, INDIRA NAGAR, DEVALOKAM, KOTTAYAM - 686 004. ``` ``` 2THARIAN CHACKO, 1C RM HOMES SAPHIRE, SEMINARIPADDY, U.C.COLLEGE P.O., ALUVA - 683 102. ``` ``` 3SAMUEL THOMAS, 52, NOEL PALMDALE, RAJAGIRI VALLEY P.O., KAKKANAD, KOCHI - 682 039. ``` **W.A.Nos.34/21 & 1365/20** **5** - `4 GEORGE PHILIP, THOTTATHIL HOUSE, THOTTUMUGHAM P.O., ALUVA -683 105.` - `5 THE MALANKARA MARTHOMAS SYRIAN CHURCH, REP. BY ITS SABHA SECRETARY, MARTHOMA SABHA OFFICE, THIRUVALLA – 689 101.` - `6 THE MALANKARA ORTHODOX SYRIAN CHURCH, REP BY ITS SABHA SECRETARY, SABHA OFFICE, DEVALOKAM, KOTTAYAM - 686 004.` - `7 THE MALANKARA JACOBITE SYRIAN ORTHODOX CHURCH, REP. BY THE SECRETARY, EPISCOPAL SYNOD, PUTHENCRUZ - 682 308.` - `8 CHURCH OF SOUTH INDIA, REP. BY SYNOD SECRETARY, CSI CENTRE, 5 WHITES ROAD, ROYAPETTA, CHENNAI - 600 014.` - `9 REGISTRAR OF COMPANIES, KERALA COMPANY LAW BHAVAN, BMC ROAD, THRIKKAKARA, ERNAKULAM - 682 021.` - `10 INSPECTOR GENERAL OF REGISTRATION, VANCHIYUR, TRIVANDRUM - 695 035.` - `11 REV.THOMAS JOHN, MANAGER, REPRESENTING UNION CHRISTIAN COLLEGE, ALUVA, POST BOX NO.5, ALUVA – 683 102.` - `12 NCLT, KOCHI BENCH, KUNNUMPURAM,VAZHAKKULAM, KOCHI - 682 021, REPRESENTED BY ITS REGISTRAR.` - `13 A.JAYASANKAR, AGED 57 YEARS, S/O. LATE P.K.VASUDEVAN PILLAI, VELLAYIKODATH, DESOM, ALUVA – 683 104.` - `14 DR. THOMAS MATHEW P, S/O. LATE P.M. THOMAS, PERAKATHUSERIL, PUTHUVASSERY, NEDUMBASSERY.P.O., ERNAKULAM-683 585.` **6** ## **W.A.Nos.34/21 & 1365/20** ``` 15DR. MINI ALICE, AGED 48 YEARS, W/O. JACOB MATHEW.K., KANJIRATHUMMOOTTIL, U.C.COLLEGE.P.O., ALUVA-683 102. ``` ``` BY ADVS. SRI.PHILIP MATHEW SRI. SANTHOSH MATHEW SRI.MANU GOVIND SRI. MANU S., ASG OF INDIA SRI. ROSHAN D.ALEXANDER SMT.TINA ALEX THOMAS SRI.S.EASWARAN SRI.G.HARIKUMAR SRI.JACOB P.ALEX ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.03.2022, ALONG WITH WA.34/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.A.Nos.34/21 & 1365/20** **7** ## **JUDGMENT** Dated this the 8[th] day of March, 2022 ## **S.Manikumar, C.J.** Before the writ court, Union Christian College, petitioner therein, has sought for the following reliefs, under Article 226 of the Constitution of India: - “A. Call for the records leading to Ext.P1 and quash the same by issue a writ of certiorari or other appropriate writ or order. - B. To declare that the National Company Law Tribunal has no jurisdiction to entertain Exhibit P2 filed under the Companies Act 2013 against the petitioner.” ## 2. While admitting the writ petition on the question of jurisdiction of NCLT to consider Exhibit P2 application, writ court vide order dated 01.07.2020, ordered thus: “Admitted on the question of jurisdiction of the NCLT to consider Ext.P2 application. 2. Issue notice to respondents 1 to 5, 7, 8, 11 and 12 by speed post or by e-mail. Adv. Roshan D. Alexander takes notice for the 6[th] respondent. The petitioner shall serve a copy of the writ petition on the learned counsel appearing for the 6[th] respondent. Learned ASGI takes notice for respondents 9 and 10. Show the name of the learned ASGI **W.A.Nos.34/21 & 1365/20** **8** in the cause list. Post on 21.7.2020. Status quo as on today with regard to the administration of the College shall be maintained till then.” 3. Being aggrieved by the said order of status quo, Mr.K.C. Eapen and three others, respondents 1 to 4 in the writ petition, have filed W.A.No.34 of 2021. 4. Record of proceedings shows that when the writ petition came up for hearing on 24.09.2020, after hearing the contesting parties, writ court ordered thus: “It is therefore held that the incorporation of the provisions of the Companies Act, 1956 in the Kerala Nontrading Companies Act, 1961 as per Section 3 of the Act, 1961 would take in the substituted Companies Act, 2013 also and the petitioner-Company would be governed by the Companies Act, 2013 to the extent it applies to the Non-trading Corporations falling under the Kerala Nontrading Companies Act, 1961.” 5. Being aggrieved by the above said order, Union Christian College has filed W.A.No.1365 of 2020. 6. Before the writ court, the contention of the Union Christian College/appellant in W.A.No.1365 of 2020 inter alia **9** ## **W.A.Nos.34/21 & 1365/20** is that the NCLT has no power to entertain any application, since the issues are not guided by the Companies Act, 2013. 7. On the other hand, respondents in the writ petition have raised a contention that a writ petition under Article 226 of the Constitution of India is not maintainable against an order passed by the Tribunal, since the Tribunal comes under the supervisory jurisdiction of the writ court under Article 227 of the Constitution of India. It is also contended that there is no appeal provided against an order passed under Article 227 of the Constitution of India, under Section 5 of the Kerala High Court Act, 1958. 8. However, going through the impugned order dated 24.09.2020, we find that the above said issue of maintainability has not been addressed. 9. Though in W.A.No.34 of 2021, on the basis of the memorandum of grounds raised, Mr. Philip Mathew, learned counsel for the appellant sought for reversal of the interim order of status quo and though Mr.Santhosh Mathew, learned counsel appearing for Malankara Orthodox Syrian Church **W.A.Nos.34/21 & 1365/20** **10** submitted that the writ petition itself is not maintainable under Article 226 of the Constitution of India, for which reliance has been placed on a Division Bench judgment of this court in **Sulochana Gupta v. RBG Enterprises Pvt. Ltd.** reported in [2020 (4) KLT Online 1051], the primary issue which requires to be considered is as to whether the writ petition filed under Article 226 of the Constitution of India is maintainable or not. As stated supra, the said aspect has not been considered in the order dated 24.09.2020, impugned in W.A.No.1365 of 2020. 10. In the above said circumstances, we are of the view that the primary objection of the respondents in W.A.No.1365 of 2020, as regards the jurisdiction of the High Court to entertain a challenge under Article 226 of the Constitution of India, as against the order of the Company Law Board in passing Exhibit P1, has to be decided, at the earliest. 11. In the above said circumstances, posed with a question as to whether instant writ appeals can be disposed of, by making a request to the writ court to address the issue **11** ## **W.A.Nos.34/21 & 1365/20** of maintainability of the writ petition under Article 226 of the Constitution of India, Mr.S.Ramesh Babu, learned Senior Counsel appearing for the appellant in W.A.No.1365 of 2020 and Mr.Philip Mathew, learned counsel appearing for the appellant in W.A.No.34 of 2021, fairly agreed to the above and submitted that the writ appeals can be disposed of. 12. Thus, placing on record the submission of the learned counsel appearing for all the parties, we are not inclined to interfere with both the impugned orders challenged in these writ appeals. However, we request the writ court to take up W.P.(C)No.13114 of 2020 and address the preliminary issue of maintainability of the writ petition under Article 226 of the Constitution of India as against Exhibit P1 order dated 22.06.2020, as expeditiously as possible. 13. After considering the rival submissions and taking a decision on the maintainability of the writ petition under Article 226 of the Constitution of India, writ court is also requested to pass appropriate further orders. Parties are at liberty to approach the writ court by preferring necessary **12** ## **W.A.Nos.34/21 & 1365/20** application for addressal of the above issue and early disposal. Writ appeals are disposed of as above. Pending interlocutory applications, if any, shall stand closed. Sd/- **S.Manikumar Chief Justice** Sd/- **Shaji P.Chaly Judge** **vpv** //TRUE COPY// P.A. TO JUDGE