Mukesh Jalan Vs Rain Tayo (Gauhati High Court)
Summary : The Gauhati High Court stayed insolvency proceedings before the NCLT, Guwahati, arising from Rain Tayo’s claim of unpaid dues of ₹3,96,96,415 for supplies of stone chips and stone dust. The NCLT had admitted the operational creditor’s application under Section 9 of the Insolvency and Bankruptcy Code, 2016 in CP (IB)/25/GB/2025, initiated the corporate insolvency resolution process (CIRP) and appointed an interim resolution professional. It also rejected Mukesh Jalan’s application seeking production of the documents supporting the claim, including bills and vouchers.
Jalan’s senior counsel contended that the Section 8 demand notice dated 15 July 2025 had been issued by a purported power-of-attorney holder before the notarised affidavit said to confer authority was executed. Paragraph 3 of the order records two different dates for that affidavit, 14 September 2025 and 14 September 2026. Counsel also submitted that the bills and vouchers had neither been supplied with the notice nor placed before the NCLT. He further argued that the creditor was a student, that his father and the power-of-attorney holder ran the proprietorship, and that the insolvency application had been filed in the creditor’s former name.
When the High Court asked about the statutory appeal to the NCLAT, counsel argued that the alleged defects in initiating insolvency proceedings raised a question of law warranting examination under Article 226. He relied on the Supreme Court’s decision in Union of India Vs Parashotam Dass on the effect of an alternative remedy on the High Court’s writ jurisdiction.
The High Court observed prima facie that the NCLT ought to have considered the application for production of documents before admitting the company petition, ordering CIRP and appointing the interim resolution professional. The Court held that the matter required examination and kept writ maintainability open for consideration at admission. It issued notice returnable in four weeks, directed that the matter be listed for admission on 11 December 2026 and made notice on the interim prayer returnable on the same date. The NCLT proceedings and the orders dated 28 October 2026 in CP (IB)/25/GB/2025 and IA(IBC)225/GB/2026 were stayed until the next listing.
Advocates for the Petitioner: Dr. Ashok Saraf, Mr. P. K. Bora, Mr. S. J. Saikia, Mr. N. N. Dutta and Mr. P. Baruah.
Cases Discussed
- (2025) 5 SCC 786 : 2023 SCC OnLine SC 314 — Union of India Vs Parashotam Dass (Supreme Court of India, 21 March 2023) — Cited by the petitioner on Article 226 jurisdiction despite an alternative statutory remedy. The Supreme Court decision concerned judicial review of an Armed Forces Tribunal order. The Gauhati High Court kept the maintainability of the present writ petition open.
FULL TEXT OF THE JUDGMENT/ORDER OF GUWAHATI HIGH COURT
Heard Dr. Ashok Saraf, learned Senior counsel assisted by Mr. A Kaushik, learned counsel for the petitioner.
2. The petitioner before this court is aggrieved by the initiation of proceedings by the NCLT at the instance of the operational creditor namely private respondent No. 1. The private respondent No. 1 had carried out certain supplies of Stone chips and stone dust for an amount of ₹3,96,96,415.00 to the petitioner. According to Respondent No. 1, the present petitioner defaulted in releasing the payments for the supplies made by the respondent No. 1. Being aggrieved, the private respondent No. 1 initiated proceedings under Section 9 under the IBC before the NCLT, Guwahati.
3. The learned senior counsel for the petitioner submits that in terms of the prescribed procedure, prior to invocation of Section 9, notice(s) are to be issued by the operational creditor, namely the private respondent No. 1. The learned senior counsel for the petitioner submits that from a perusal of the pleadings enclosed, it is clear that the notices as contemplated under section 8 was issued by the power of attorney holder and not by the operational creditor. He further submits by referring to the relevant documents enclosed to the petition it is clear that this power of attorney holder had issued the notice dated 15/7/2025, which is enclosed as Annexure VI to the writ petition. The further submission of the learned senior counsel for the petitioner is that this notice was issued by the power of attorney holder well prior to the power of attorney holder being conferred with such powers by due execution of a notary affidavit. Referring to the notary affidavit enclosed to the writ petition, which is available at page 242 of the petition, it is submitted by the learned senior counsel that the notary affidavit was executed on 14/9/2025. It is therefore submitted that on the date when the notice on 15/7/2025 was issued purportedly by the power of attorney holder on behalf of the private respondent No. 1, there was no power conferred by the respondent No. 1 on the said power of attorney holder. The Notary affidavit was executed on 14.09.2026. The learned senior counsel therefore submits that without issuance of the mandatory notice as provided for in the scheme of the IBC, the proceedings were initiated under Section 9 before the NCLT.
4. The learned senior counsel for the petitioner submits that upon initiation of the proceedings before the NCLT and upon receipt of the notice, the petitioner had approached the authorities by filing an application seeking disclosure of all documents including the vouchers and bills, which came to be rejected by order dated 28th of October 2026. This application was filed in the company petition filed by the Operational Director under Section 9, which has already been admitted by the Tribunal. It is submitted by the learned senior counsel that a bare reading of the orders passed by the NCLT, it is clear that the respondent No. 1 is a student and the proprietorship firm is run by his father Mr. Tayo Taloom and the power of attorney holder Mr. Sonjib Gogoi. The learned senior counsel therefore submits that the impugned order dated 28.10.2026 as well as the order dated 28/10/2026, passed in CP (IB)/25/GB/2025, whereby the company petition filed by the respondent no. 1 stood admitted and the initiation of Corporate Insolvency Resolution Proceedings were ordered against the petitioner under Section 9 of the Code, read with Rule 6 of the Insolvency and Bankruptcy Rule 2016 is with utter disregard to the mandatory provisions of the statute. It is submitted that where the very initiation of the proceedings is contrary to the provisions prescribed under IBC, the NCLT Guwahati ought to have taken into account the objections raised by the petitioner calling for the complete documents to be placed before the Court and instead the proceedings were admitted and thereafter the IA filed by the petitioner had also been rejected.
5. On a pointed query by the Court with regard to the availability of adequate alternative remedy as specified under the code itself by filing an appropriate appeal before the NCLAT, the learned senior counsel for the petitioner submits that where the very initiation of the proceedings are contrary to the enshrined provisions of the IBC and thereby a question of law arises, the powers of a constitutional Court are not curtailed in examining matters of this nature where the Tribunal has failed to take into account the relevant provisions of the statute particularly the fact that the proper notice as required under the IBC, had not been issued and also in view of the fact that the relevant documents, the vouchers on which the claims are made, are not submitted to the petitioner under the notice nor placed before the tribunal and notwithstanding that the tribunal proceeded to initiate the CIRP and had appointed the resolution professional against the respondent No. 3.
6. It is also submitted by the learned senior counsel for the petitioner that the name of the private respondent stood altered subsequently by filing necessary affidavit whereas the application before the NCLT was filed in the erstwhile name of the respondent. He has referred to the judgment of Union of India Vs. Parashtom Dass, reported in (2025) 5 SCC 786 wherein the apex court has held that availability of alternative remedy is not a complete bar for entertaining proceedings under the IBC Code under 226, where question of law is required to be decided.
7. Having heard the counsel for the parties, learned proxy counsel has entered appearance on behalf of Mr. K. Sharma, learned CGC has submitted before the court that he is indisposed and is not available.
8. Considering the urgency expressed by the counsel to the petitioner and upon due consideration of the submissions of the counsel for the petitioner that the initiation of proceedings as contemplated under the IBC is hit because of non-fulfillment of the mandatory provisions prescribed under Sections 7, 8, 9 and also in view of the fact that the production of documents as sought for by the petitioner by filing an IA stood rejected after the company petition stood admitted, prima facie it appears to the court that the NCLT ought to have duly considered the IA prior to admitting the company petition and ordering the CIRP and appointment of the interim resolution professional. In addition to the defence projected by the petitioner as a party before the NCLT that the procedure prescribed including issuance of proper notice under the IBC proceedings had not been adhered to by the applicant before the NCLT.
9. Having heard the learned senior counsel for the petitioner and upon perusal of the writ petition before this court and also upon carefully noting the law relied upon, this court is of the view that at this stage the matter requires examination, keeping the question of maintainability is open to be decided at the time of admission.
10. Let Notice be issued, returnable in four weeks.
11. The learned counsel appearing for the respondent No. 4 accepts notice, therefore, notices are waived. However, extra copies be furnished within one week from today.
12. Steps be taken by Speed post on respondents No. 1 to 3 within one week from today.
13. Matter be listed for admissions on 11.12.2026. Issue notice on the interim prayer, returnable on the same date.
14. The proceedings before the NCLT initiated under company petition and the orders dated 28.10.2026 passed in CP (IB)/25/GB/2025 and IA(IBC)225/GB/2026 shall remain stayed till the next date of listing.
