W. A. No. 446 of 2022 – Malankara Orthodox Syrian Church v Union Christian College and Others

W. A. No. 446 of 2022 -1- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 5[TH] DAY OF APRIL 2022 / 15TH CHAITHRA, 1944** **WA NO. 446 OF 2022** **AGAINST THE ORDER IN WP(C) 13114/2020 OF HIGH COURT OF** **KERALA** ## **APPELLANT/S:** **THE MALANKARA ORTHODOX SYRIAN CHURCH REP BY ITS SABHA SECRETARY, SABHA OFFICE, DEVALOKAM, KOTTAYAM-6876 004 BY ADVS. SANTHOSH MATHEW ROSHEN.D.ALEXANDER TINA ALEX THOMAS HARIMOHAN** ## **RESPONDENT/S:** - **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 K.C.EAPEN, AGED 81 YEARS S/O. LATE K.E.CHERIAN, THAYYIL KANDATHIL, ANUGRAHA, INDIA NAGAR, DEVALOKAM, KOTTAYAM-686 004.** - **3 THARIAN CHACKO, AGED 70 YEARS S/O. LATE P.C.CHACKO, 1C, RM HOMES SAPHIRE, SEMINARIPADY, U.C.COLLEGE P.O., ALUVA-683 102** - **4 SAMUEL THOMAS, AGED 69 YEARS S/O. LATE.A.C.SAMUEL, NOEL PALMDALE, RAJAGIRI VALLEY P.O., KAKKANAD, KOCHI-682 039** - **5 GEORGE PHILIP, AGED 78 YEARS S/O. LATE P.V.PHILIP, THOTTATHIL HOUSE,** W. A. No. 446 of 2022 -2- **THOTTUMUGHAM P.O., ALUVA-683 105** - **6 THE MALANKARA MARTHOMA SYRIAN CHURCH, (MALANKARA MARTHOMA SYRIAN CHURCH), REP BY ITS SABHA SECRETARY, MARTHOMA SABHA OFFICE, THIRUVALLA-689 101** - **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, SCI 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 NATIONAL COMPANY LAW TRIBUNAL , KOCHI BENCH KUNNUMPURAM, VAZHAKKULAM, KOCHI-682 021, REP BY ITS REGISTRAR** - **13 A.JAYAKUMAR** - **S/O. LATE P.K.VASUDEVAN PILLAI, VELLAYIKODATH, DESOM, ALUVA, PIN-683 102** - **14 DR.THOMAS MATHEW.P., S/O. LATE P.M.THOMAS, PERAKATTUSSERIL , PUTHUVASSERY, NEDUMBASSERY P.O., ERNAKULAM-683 589** - **15 DR.MINI ALICE AGED 48 YEARS** - **W/O. JACOB MATHEW, KANJITHATHUMMOOTTIL, U.C.COLLEGE P.O., ALUVA-683 102** **OTHER PRESENT:** **SRI. SAJI VARGHESE FOR R1, SRI. PHILIP MATHEW FOR R2 TO R5, SRI. GEORGE A. CHERIAN FOR R6,SRI. JACOB P. ALEX FOR R8, SRI. MANU. S, ASG FOR R9, SRI. G.HARIKUMAR FOR R11, SRI. S.EASWARAN FOR R14** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W. A. No. 446 of 2022 -3- ## **J U D G M E N T** ## S. Manikumar, C.J. Being aggrieved by the interim order dated 31.03.2022 in W. P. ## (C) No. 13114 of 2020, instant writ appeal is filed. ## 2. Short order dated 31.03.2022 impugned in this writ appeal is reproduced:- “The learned counsel for the 6[th] respondent mentioned before this Court for a posting of the above writ petition in the light of the judgment dated 08.03.2022 in Writ Appeal No.34/2021. Therefore this writ petition is listed today. The learned counsel for the 6[th] respondent submitted that in the light of the judgment of this Court in **Sulochana Gupta v. RBG Enterprises Pvt. Ltd. [2020 (4) KLT Online 1051]** , this writ petition itself is not maintainable. The learned counsel also takes me through paragraph 8 onwards of the judgment in Writ Appeal No.34/2021, which is an appeal filed against the interim order passed in this writ petition. The learned counsel further submitted that the Division Bench allowed the parties to request the writ court for an early hearing to decide the question of maintainability. 2. The learned Senior Counsel Sri.Ramesh Babu, as instructed by Sri.Saji Varghese T.G., submitted that the dictum W. A. No. 446 of 2022 -4- laid down by this Court in **Sulochana Gupta’s case** (supra) is not applicable and there are subsequent judgments of the Apex Court based on which he can convince this Court that this writ petition is maintainable under Article 226 of the Constitution of India. 3. From the above arguments it is clear that this is a matter to be heard in detail. Because of the scarcity of time, this Court is not in a position to hear the matter before the summer vacation. Therefore, this writ petition can be listed on 18.05.2022 for final hearing. Both sides will get ready with the matter on 18.05.2022. The learned counsel for the 6[th] respondent submitted that under the guise of the interim order, the petitioner shall not make any appointment. I do not want to make any modification or clarification in the order already passed by this Court. But I make it clear that, since already there is a status quo order passed by this Court on 01.07.2020, which is not interfered by the Division Bench, it is improper on the part of the NCLT to proceed with the matter till 18.05.2022.” 3. Material on record discloses that earlier, before the National Company Law Tribunal, CP/17/KOB/2020 was filed under Sections 241 and 242 of the Companies Act, 2013. ## 4. Prayers sought for in the company petition are as hereunder:- “i. to make alterations in the Memorandum of Association and such alterations in the Articles of Association for W. A. No. 446 of 2022 -5- the Respondent Company to bring it in consistency with Table G & H under Schedule 1 of the Companies Act, 2013 and to remove all inconsistent clauses now existing in the Articles of Association in view of Section 6 of the Companies Act, 2013; ii. to direct a Register of Members to be made and kept at the Registered office of the 1[st] Respondent Company after the filing of the Form No.INC 23 in respect of the change of situation of the Registered Office as at Aluva to be filed with the Registrar of Companies; iii. to supersede the present (1) College Council (2) and (3) Senatus and appoint an administrator for managing and running the affairs of the Respondent Company till a duly constituted Board of Directors is constituted under the altered Articles of Association; iv. to remove the 2[nd] Respondent Manager of the Respondent Company and to recover the undue gains made by him; v. to conduct a forensic audit of the accounts of the Respondent Company and recover the amounts misappropriated, the funds lost by misfeasance and misapplication from the delinquent persons who are running presently the affairs of the Respondent-Company holding them liable for the loss caused to the Respondent Company; vi. to appoint such number of persons as directors requiring them to report to the Tribunal on such matters as the Tribunal may direct in the facts and circumstances of the case; W. A. No. 446 of 2022 -6- vii. to impose costs as may be deemed by this Hon'ble Tribunal on the contesting Respondents who are found to be the delinquent persons running the affairs of the 1[st] RespondentCompany.” 5. After hearing the learned counsel for the parties, National Company Law Tribunal, Kochi, has passed the following interim order dated 22.06.2020:- “(i) An Interim administrator is to be appointed to manage and carry out the affairs of Respondent No.1 Company until further orders. (ii) it is directed to maintain status quo with regard to the management and affairs of the Company as of today until the appointment of an interim administrator. (iii) Both the parties are directed to suggest the name of a person to be appointed as an interim administrator to manage and carry out the affairs of the 1[st] Respondent Company, within two weeks from today.” 6. Challenging Ext. P1 order dated 22.06.2020 passed by the National Company Law Tribunal, Kochi, Union Christian College, Aluva, has filed W. P. (C) No. 13114 of 2020, to quash Ext. P1 order, by issuing a writ of certiorari, and also for a declaration that the National Company Law Tribunal has no jurisdiction to entertain Ext. W. A. No. 446 of 2022 -7- P2 filed under the Companies Act, 2013. ## 7. When the matter came up for admission, writ court, as early as on 01.07.2020, has passed the following order:- “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. Roshen 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 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.” 8. Being aggrieved, respondents 1 to 4 in W. P. (C) No. 13114 of 2020, namely Mr. K. C. Eapen and 3 others, have filed W. A. No. 34 of 2021. 9. Though Mr. Philip Mathew, learned counsel for the appellant in W. A. No. 34 of 2021, sought for reversal of the interim order of status quo and though Mr. Santosh Mathew, learned counsel for the Malankara Orthodox Syrian Church, the appellant herein, submitted W. A. No. 446 of 2022 -8- that writ petition itself is not maintainable under Article 226 of the Constitution of India, having regard to the consensus of the learned counsel for the appellants, this Court, by common judgment in W. A. Nos. 34 of 2021 and 1365 of 2020 dated 08.03.2022, declined to interfere with the impugned order therein, but requested the writ court to decide on the maintainability of the writ petition. 10. For brevity, relevant paragraphs of the common judgment in W. A. Nos. 34 of 2021 and 1365 of 2020 dated 08.03.2022, are reproduced:- “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 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 W. A. No. 446 of 2022 -9- 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 application for addressal of the above issue and early disposal. Writ appeals are disposed of as above.” 11. After the judgment, above cited request seemed to have been made before the writ court by the Union Christian College, Aluva, to hear the writ petition, and during the course of the same, submission has been made by the Malankara Orthodox Syrian Church, the 6[th] respondent therein, that under the guise of the interim order, appointment should not be made. 12. Due to scarcity of time and taking note of the common judgment of the Division Bench in W. A. Nos. 34 of 2021 and 1365 of 2020 dated 08.03.2022, writ court, declined to modify the interim order. 13. Though by inviting the attention of this Court to an interim W. A. No. 446 of 2022 -10- order passed by the National Company Law Tribunal in CP/17/KOB/2020 dated 22.03.2022, declining to grant adjournment, Mr. Santosh Mathew, learned counsel for the appellant, prayed for modification of the order of status quo, we are not inclined to do so for the reason that perusal of the order impugned before us, makes it clear that the writ court in the order dated 31.03.2022 has observed that an order of status quo passed by the learned Single Judge dated 01.07.2020, has not been interfered with by a Division Bench of this Court in W. A. Nos. 34 of 2021 and 1365 of 2020. We observe that the said order continued for more than 1 ½ years. ## 14. Order of status quo dated 01.07.2020, reads 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. Roshen 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 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.” W. A. No. 446 of 2022 -11- 15. Order of status quo, stated supra, has to be understood by all parties, as ordered. If there is any violation of the order of status quo, it is always open to the person aggrieved to move the Court for appropriate relief. 16. Interim order of the National Company Law Tribunal, Kochi dated 22.03.2022, brought to the notice of this Court, as a subsequent development, for seeking modification or clarification in the order of status quo, reads thus:- “Learned counsel for the Petitioners Smt Karthika KJ appeared through VC. Learned counsel for R1& R2-Shri Akhil Suresh, learned counsel for R3 Shri George A Cheriyan, learned counsel for R4 Smt Mariya Rajan, learned GP for R8 Shri Arun Chandy and learned counsel for R6 Shri Abhilash Nediyalil Abraham appeared through VC. None appeared for other respondents. Shri Akhil Suresh submitted that there is a status quo Order by the Hon'ble High Court of Kerala and no stay order exists in this case. Shri Akhil Suresh sought an adjournment to enable his senior to argue the matter and also sought time to file the Reply Statement in this case. Allowed. R1 & R2 are directed to file the Reply Statement on or W. A. No. 446 of 2022 -12- before 06.04.2022. List on 26.04.2022 for hearing. There shall be no adjournment in this case.” 17. Merely because the tribunal has refused to grant an adjournment, that would not be a ground to modify the interim order of status quo in force for a considerable period, as stated supra. 18. However, we make it clear that the interim order of status quo granted by this Court, as early as on 01.07.2020, and continued by a Bench of this Court, should be considered by the tribunal, as well as all the parties concerned, with regard to the administration of college, as stated in the first order of the learned Single Judge dated 01.07.2020, which at the risk of repetition, is reproduced:- “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. Roshen 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 in the cause list. Post on 21.7.2020. Status quo as on today with regard to W. A. No. 446 of 2022 -13- the administration of the College shall be maintained till then.” 19. Status quo with regard to administration of the college, shall remain as on 01.07.2020. In the light of the above discussion, we are not inclined to interfere with the impugned order. Accordingly, writ appeal is dismissed. **Sd/-** **S. MANIKUMAR CHIEF JUSTICE** **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE