M/S SHREE BASAVESHWAR SUGARS LIMITED vs INDIAN RENEWABLE ENERGY DEVELOPMENT AGENCY LIMITED

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WP No. 30901 of 2024


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

RD
DATED THIS THE 03 DAY OF NOVEMBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE T.P.VIVEKANANDA

WRIT PETITION NO. 30901 OF 2024 (GM-RES)


BETWEEN:

M/S. SHREE BASAVESHWAR SUGARS LIMITED
A COMPANY INCORPORATED UNDER
COMPANIES ACT, 1956
REPRESENTED BY ITS DIRECTOR
E DHAYALAN
ND
ADMIN OFFICE AT NO 32, 2 FLOOR
ST TH
1 B MAIN ROAD, 8 B CROSS
B SECTOR, EAR GANAPATHI TEMPLE
YELAHANKA NEW TOWN
BENGALURU-560 064

AND REGISTERED OFFICE AT:
NO.06, MALLIKARJUN BADAVANE
MANAGULI ROAD, GANESH NAGAR
BIJAPUR-586 109, KARNATAKA

…PETITIONER














(BY SRI: C K NANDA KUMAR, SR COUNSEL ALONG WITH
SRI: SHYAM SUNDAR H V, ADVOCATE)

AND:

INDIAN RENEWABLE ENERGY
DEVELOPMENT AGENCY LIMITED
PUBLIC LIMITED GOVERNMENT COMPANY
NON BANKING FINANCIAL INSTITUTION, 1987
REGISTERED OFFICE AT
ST
INDIA HABITAT CENTRE, 1 FLOOR
EAST COURT CORE 4A, LODHI ROAD
NEW DELHI-110 003
(PUBLIC FINANCIAL INSTITUTION
Digitally signed by
PREMCHANDRA M R
Location: HIGH
COURT OF
KARNATAKA

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UNDER SECTION 4A OF COMPANIES ACT, 1956)

…RESPONDENT
(BY SRI: K ARVIND KAMATH, ASG ALONG WITH
SMT:DHANYA KESARI RAO GURPUR, ADVOCATES)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDER DATED 14.11.2024 PASSED BY THE
HONBLE NCLT, BANGALORE IN IA (RES) NO.8/2024 IN C.P (IB)
NO.37/BB/2022 VIDE ANNEXURE-A AND ETC.,
THIS WRIT PETITION, HAVING BEEN RESERVED FOR
ORDERS ON 13.10.2026, COMING ON FOR PRONOUNCEMENT,
THIS DAY, T.P.VIVEKANANDA J., MADE THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE T.P.VIVEKANANDA

CAV ORDER
The petitioner is before this Court challenging the order
dated 14.11.2024 passed by the National Company Law
Tribunal (NCLT), Bengaluru on IA (Res) No.8 of 2024 in CP(IB)
No.37/BB/2022 at Annexure-A.
2. The background of the impugned order passed by
the NCLT as per Annexure-A is that, the respondent herein had
filed a petition under Section 7 of Insolvency and Bankruptcy
Code, 2016 ( for short 'the IBC') before NCLT, Bengaluru, which
was registered as CP(IB) No.37/BB/2022 for initiation of
proceedings of Corporate Insolvency Resolution Process (CIRP)
against the petitioner in respect of the debt amounting to INR

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178,25,23,894/-. NCLT issued notice of the said proceedings.
The petitioner who was the respondent before the NCLT has
represented and submitted that the claim of the
respondent/petitioner would be settled under OTS. The
petitioner proposed a OTS for an amount of INR
117,35,25,151/-, which when accepted by the respondent
resulted in approval of the OTS proposal through sanction
letter dated 17.11.2023.
3. Parallel to the negotiation of settlement through
OTS, the NCLT, Bengaluru passed an order on 10.01.2024
admitting the petitioner into CIRP and appointed an IRP. In
view of the fact that against the very same corporate
debtor/petitioner, another creditor Viz., Canara Bank had also
instituted proceedings under IBC, the petition filed by the
respondent came to be disposed of on 11.01.2024 granting
liberty to the respondent to file its claim with IRP in CP(IB)
No.117/BB/2023 on the ground that there can be no multiple
CIRP proceedings against a common corporate debtor. The
petitioner herein entered into a settlement under OTS with the
Canara Bank, which resulted in the withdrawal of the
proceedings in CIRP in CP(IB) No.117/BB/2023 on 16.02.2024.
In view of the termination of the proceedings of CIRP in respect

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of Canara Bank, the respondent herein could not file its claim
before the IRP in CP(IB) No.117/BB/2023.
4. It is the said circumstances, which resulted in the
respondent approaching the NCLT seeking recall of the order
dated 11.01.2024 and revival of CP(IB) No.37/BB/2022 under
Section 60(5) read with Rule 11 of NCLT Rules, 2016. The said
IA was numbered as IA(RES) No.8 of 2024 in CP(IB)
No.37/BB/2022. The said application was filed on 06.08.2024.
The application for revival was opposed by the corporate
debtor/petitioner herein contending that the termination of the
proceedings between the petitioner and the Canara Bank on
16.02.2024 was within the knowledge of the respondent herein.
However, the application for recall/revival was filed after 6
months of withdrawal of CIRP through order dated 16.02.2024.
It is their further contention that without there being any
liberty in the order dated 11.01.2024 to seek revival of the
petition, the application for revival filed by the respondent is
not maintainable.
5. Upon consideration of the rival contentions of the
petitioner and the respondent herein, who were the parties
before NCLT, the Tribunal has passed an order allowing the

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application and restoring CP(IB) No.37/BB/2022 to its original
file and directing listing of the matter on 20.11.2024. It is the
said order, which is under challenge in the present writ petition.
This Court had passed an interim order on 19.11.2024 staying
the effect of the order dated 14.11.2024 and all further
proceedings.
6. The respondent/corporate creditor has filed the
application for vacation of the interim order on several grounds.
However, principally on the ground that the writ petition is not
maintainable, inasmuch as, the petitioner has an alternative
and efficacious remedy under Section 61 of the IBC, 2016,
which reads as follows:
"61. Appeals and Appellate Authority:-
(1) Notwithstanding anything to the contrary
contained under the Companies Act 2013 (18 of 2013),
any person aggrieved by the order of the Adjudicating
Authority under this part may prefer an appeal to the
National Company Law Appellate Tribunal.
(2) Every appeal under sub-section (1) shall be
filed within thirty days before the National Company
Law Appellate Tribunal:
Provided that the National Company Law
Appellate Tribunal may allow an appeal to be filed after

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the expiry of the said period of thirty days if it is
satisfied that there was sufficient cause for not filing
the appeal but such period shall not exceed fifteen
days.
(3) An appeal against an order approving a
resolution plan under section 31 may be filed on the
following grounds, namely:—
(i) the approved resolution plan is in
contravention of the provisions of any law for the time
being in force;
(ii) there has been material irregularity in
exercise of the powers by the resolution professional
during the corporate insolvency resolution period;
(iii) the debts owed to operational creditors of the
corporate debtor have not been provided for in the
resolution plan in the manner specified by the Board;
(iv) the insolvency resolution process costs have
not been provided for repayment in priority to all other
debts; or
(v) the resolution plan does not comply with any
other criteria specified by the Board.
(4) An appeal against liquidation order passed
under Section 33 may be filed on grounds of material
irregularity or fraud committed in relation to such a
liquidation order."

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7. Apart from contending that the writ petition
challenging the order passed by the NCLT is not maintainable,
the learned Additional Solicitor General appearing for the
respondent submits that the petition filed by the respondent
before the NCLT was disposed of permitting the respondent to
make a claim in the insolvency proceedings initiated by
another corporate creditor, Viz., Canara Bank and there was no
adjudication of merits of the claim of the respondent by the
NCLT. Neither the respondent nor the NCLT could have
predicted that before the respondent could make its claim in
the insolvency proceedings initiated by Canara Bank, the
petitioner and the Canara Bank would have settled the matter
under OTS. It is in the said circumstances, the respondent did
not seek liberty to file an application for restoration, if the
claim of the respondent is either rejected or not considered for
any reason whatsoever. Therefore, the respondent was well
within its right to seek revival of the petition filed by it and the
NCLT was well within its jurisdiction to entertain the application
for restoration/revival.


8. The application for vacating stay was opposed by
the petitioner by filing statement of objections contending that,

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(i) mere existence of an alternate remedy under
Section 61 of IBC, this Court is not precluded from the grant of
interim order dated 19.11.2024.
(ii) the exhausting of statutory remedy prior to
invoking the writ jurisdiction is a self-imposed restraint by the
High Court. However, the said restraint is not absolute and is
subject to the following:
(a) where the writ petition has been filed for the
enforcement of any fundamental rights;
(b) violation of principles of natural justice;
(c) where the order or proceedings are wholly without
jurisdiction, or ultra vires of an Act is challenged.
(iii) as the impugned order passed by the NCLT,
entertaining an application for recalling/revival of the
proceedings without there being an express provision under the
IBC and allowing the petition with the delay of 6 months in
filing the application for recalling of the order dated 11.01.2024
is without jurisdiction and nullity in the eye of law and
therefore, the petitioner need not have to exhaust the remedy
of appeal under Section 61 of IBC and the petitioner could as

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well approach this Court invoking the extraordinary jurisdiction
under Article 226 of the Constitution of India.
9. Apart from the contention regarding maintainability
of the writ petition, so also, the maintainability of the
application filed by the respondent before the NCLT for revival
of the proceedings, learned senior counsel Sri C K Nandakumar
appearing for the petitioner and the learned Additional Solicitor
General Sri Aravind Kamath appearing for the respondent have
made submission on the merits of the matter also.
10. In addition, several submissions have been made as
regards the approval of OTS in the year 2023, part payment
made by the petitioner and the default committed, so also, the
OTS offer made in the month of February 2026 and the
correspondence between the petitioner and the respondent
from February 2026 till September 2026.
11. The necessity of consideration of the rival
submissions of the petitioner and the respondent as regards the
legality or otherwise of the order passed by the NCLT, so also,
the arguments regarding consideration of the fresh OTS
proposal of the petitioner would have to be considered only if

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this Court were to hold that the writ petition filed by the
petitioner challenging the impugned order is maintainable.
12. In that view of the matter, this Court proposes to
consider the preliminary objection raised by the respondent as
regards the maintainability of the writ petition in view of the
existence of an alternative remedy of appeal before the NCLAT
under Section 61 of the IBC.
13. In light of the serious objections raised by the
respondent with regard to the maintainability of the writ
petition, the first point that requires to be considered in the
present writ petition is as to whether the writ petition is
maintainable notwithstanding the availability of alternate
remedy under Section 61 of the IBC.
14. As noticed supra, the order passed by NCLT
recalling its earlier order dated 11.01.2024 and restoring the
CP (IB) No.37/BB/2022 is an appealable order before the
NCLAT. Learned senior counsel for the petitioner submits that
since the order passed by the NCLT restoring the petition filed
by the respondent is without jurisdiction, therefore, petitioner
need not have to avail the alternate remedy of appeal before
the NCLAT and is entitle to invoke the writ jurisdiction of this

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Court. In support of the said contention, learned senior
counsel has placed reliance on the judgment of the Hon'ble
Apex Court in the case of Embassy Property Developments
1
Private Limited Vs State of Karnataka and Others . It is
the contention that non-exercise of the power under Article 226
of the Constitution of India even in the case of availability of
alternate remedy is a self-imposed restraint by the High Courts.
It is his contention that if it is demonstrated that the order
passed by the statutory or quasi-judicial authority is with lack
of jurisdiction and in case of wrongful exercise of the available
jurisdiction the High Court is well within its power under Article
226 of the Constitution of India to adjudicate upon the validity
of the orders notwithstanding the availability of the alternate
remedy.
15. In light of the aforesaid submission, it is necessary
to notice the facts of the case of Embassy Property
Developments Private Limited (supra). In the said case, the
question involved was whether the High Court was justified in
entertaining the Writ Petition under Article 226 of the
Constitution of India against an order passed by the NCLT

1
(2020) 13 SCC 308

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under the provisions of IBC, despite availability of a statutory
alternative remedy of appeal to the NCLAT. The said question
has been answered in paragraph 46 of the said judgment
holding that the NCLT whose order was questioned before the
High Court invoking the jurisdiction under 226 of the
Constitution of India did not had jurisdiction to entertain an
application against the Government of Karnataka for a direction
to execute Supplementary Lease Deed for the extension of the
mining lease. Since the NCLT chose to exercise the jurisdiction
not vested in it, the Hon'ble Apex Court has held that the High
Court was justified in entertaining the writ petition filed by the
State of Karnataka, challenging the order passed by the NCLT,
directing it to execute the Supplementary Lease Deed. The
observation of the Hon'ble Apex Court is that the prayer which
has been granted by the NCLT could have been sought only
before the High Court, invoking the writ jurisdiction under
Article 226 of the Constitution of India and not before the
NCLT. It is under the said circumstances, the Hon'ble Apex
Court has held that the writ petition filed by the State of
Karnataka before the High Court of Karnataka was
maintainable. The facts and circumstances obtaining in the
present case and the judgment relied upon by the petitioner

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are altogether different and therefore, the said judgment is not
helpful to the petitioner.
16. Learned senior counsel for the petitioner has further
relied upon the judgment of the Hon'ble Apex Court in the case
2
of Budhia Swain and Others Vs Gopinath Deb and Others
and contended that the power to recall an order could be
exercised only under the following circumstances viz,
(i) an order obtained by fraud;
(ii) when the Court is misled by a party; and
(iii) when the Court itself commits a mistake which
prejudices a party.
17. It is also his submission that a Tribunal or a Court
may recall an order made earlier under the following
circumstances:
(i) the proceedings culminating into an order suffer from
inherent lack of jurisdiction and such lack of jurisdiction is
present;
(ii) there exists fraud or collusion in obtaining the
judgment;

2
(1999) 4 SCC 396

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(iii) there has been a mistake of the Court prejudicing a
party; and
(iv) a judgment was rendered in ignorance of the fact
that a necessary party had not been served at all or had
died and his estate was not represented.
18. Though the circumstances as stated in the
judgment relied upon by the petitioner do not specifically exist
in the present case, however, the circumstances which is cited
above i.e. there has been a mistake of the Court
prejudicing a party could be applied to the present case.
Inasmuch as, the NCLT while passing the order dated
11.01.2024 disposing of the petition filed by the respondent
permitting it to put forth its claim before the IRP appointed in
CP(IB) No.117/BB/2023 in accordance with the provisions of
the IBC, 2016 and the Regulations made there under did not
anticipate that the insolvency proceedings initiated by the
Canara Bank would get terminated on account of the OTS
between the petitioner and the Canara Bank. Therefore, it is in
the said circumstances, neither the respondent sought liberty
to revive the petition nor the Court has granted such liberty.
Therefore, this Court cannot come to a definite conclusion that
the NCLT had no inherent jurisdiction or lack of jurisdiction to

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entertain the application filed by the respondent for recalling
and restoration of the petition filed by it, so as to accept the
contention of the petitioner that the writ petition is
maintainable since the NCLT did not had jurisdiction to
entertain the application for recalling.
19. It is not in dispute that the IBC is a self-contained
Code. The remedy of appeal against an order passed by the
NCLT is specifically provided in the code itself. If the
jurisdiction under Article 226 of the Constitution of India is
exercised in the case of present nature, it would amount to
breaching the normal stream of judicial proceedings. The facts
and circumstances involved in the present case do not suggest
that an extraordinary circumstances exist for entertaining the
writ petition dehors the remedy of appeal. Whether the NCLT
had jurisdiction to entertain the application for recalling or
whether the application filed by the respondent for seeking
recalling and restoration of the petition filed by it was beyond
the period of limitation could also be a ground in a statutorily
provided appeal before the NCLAT. The said aspects need not
be gone into in a writ petition filed under Article 226 of the
Constitution of India. If the writ petition of the present nature is
entertained providing of alternative remedy of appeal under the

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statute would become otiose. Therefore, this Court is of the
opinion that the present writ petition cannot be entertained and
adjudicated on merits and the matter requires to be considered
only by the NCLAT in a properly constituted appeal under
Section 61 of the IBC, since the jurisdiction of appellate
Tribunal and the scope of the appellate remedy is wide.
20. It is relevant to take note of the judgments of the
Hon'ble Supreme Court in the case of M/s Godrej Sara Lee
Ltd., Vs The Excise and Taxation Officer-Cum-Assessing
3
Authority & Others and WhirlPool Corporation Vs
4
Registrar of Trade Marks, Mumbai and Others , wherein,
the Hon’ble Apex Court has laid down under what
circumstances, the writ court would be justified in entertaining
the writ petition despite existence of alternative remedy, which
are as follows:
(i) where the writ petition seeks enforcement of any of
the fundamental rights;
(ii) where there is violation of principles of natural justice;

3

(2025) 11 SCC 808
4
(1998) 8 SCC 1

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(iii) where the order or the proceedings are wholly
without jurisdiction; or
(iv) where the vires of an Act is challenged.

This Court is of the opinion that none of the aforesaid
circumstances exist in the present case.
21. Much of the arguments have been advanced insofar as
the request made by the petitioner for settlement under OTS and
the same is pending consideration. The said issue is outside the
scope of the present writ petition. However, by order dated
05.10.2026, taking note of the submission of learned senior
counsel for the petitioner, the respondent was called upon to
respond as to the consideration of request for OTS. In response to
the same, learned senior counsel appearing for the respondent had
submitted that the petitioner had been called upon to furnish
several documents and information for consideration of the request
for OTS, if only, the required documents and information are
furnished, the respondent would be in a position to take a decision
in the matter in accordance with the existing policy. Therefore, it is
for the petitioner to make good the requirement for consideration
of its request for OTS. No direction could be issued by this Court in

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that regard. If the petitioner complies with the conditions of OTS
policy, there is no reason to believe that the respondent would not
consider the request for OTS, notwithstanding the proceeding
before the NCLT/NCLAT.
22. In the result, the following:
ORDER
(i) The writ petition is dismissed .
(ii) The petitioner is at liberty to approach the NCLAT by
filing a statutory appeal under Section 61 of IBC, if so advised.
(iii) Since the petitioner is before this Court from
16.11.2024 till this day by prosecuting this writ petition, it is open
for the petitioner to seek exclusion of the time spent before this
Court by filing an appropriate application under Section 14 of the
Limitation Act.
(iv) If such an application is filed, there is no reason to
believe that the NCLAT would not consider the same, taking note of
the pendency of this petition before this court since 2024.
(v) In view of the fact that that interim order passed by
this Court is in operation since 19.11.2024, the same is extended

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for another period of 3 weeks from today to enable the petitioner to
approach the NCLAT and seek interim protection in accordance with
law.
(vi) All the contentions of both the parties are kept open.
(vii) Any observation made in this order is only for the
purpose of disposal of this writ petition. In the event of petitioner
filing an appeal before the NCLAT, the same shall be considered
without being influenced by the observations made in this order.


Sd/-
(T.P.VIVEKANANDA)
JUDGE





BGN