TaxTMI 
TaxTMI 
2019 (2) TMI 1115
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....tor namely ; Gammon India Ltd., against the corporate debtor under sections 433(e) and (f) and 434 of the Companies Act, 1956 for winding up of this company on the ground that this corporate debtor defaulted in making repayment of Rs. 54,86,09,635 with interest at 15 per cent. per annum as on August 15, 2016 till its realisation. 2. Since winding up jurisdiction, owing to the arrival of the Insolvency and Bankruptcy Code, 2016, has been transferred from the hon'ble High Court of Bombay to the National Company Law Tribunal, Mumbai, this matter has also been transferred from the hon'ble High Court of Bombay to this Bench, accordingly, this petitioner along with the transferred company petition filed Form 5 under section 9 of the Inso....
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....in respect to 22 flats wrongly transferred by Treetop (the company belonging to the petitioner). 4. During the suit was pending, these three partners, i.e., the corporate debtor and other two partners including the company belonging to the petitioner on July 2/18, 2011 entered into consent terms with a covenant that the balance work to be executed is podium, club house, swimming pool, etc., valued at Rs. 41.49 crores, but according to the corporate debtor, the petitioner could not construct club house and swimming pool. Despite the supplementary agreements entered into from time to time, the corporate debtor further submits, this petitioner abandoned the work incomplete. 5. In the backdrop of these historical facts, the petitioner, having....
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....r a lapse of two years will disclose the dishonest and wrongful character of the petitioner herein because this petitioner left the work site two years before issual of this notice. 8. Counsel appearing on behalf of the corporate debtor further states that this purported final bill for Rs. 50.43 crores has not disclosed supporting documents substantiating the amount mentioned in the said bill and also does not mention the work done to which the bill is raised. 9. He further submits that on March 14, 2015 the firm replied to the alleged final bill stating that this petitioner has started working in the site since January 2013, for this petitioner did not carry out the work in satisfactory manner, this firm was compelled to take charge of t....
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....iii) The petitioner has taken payments exceeding Rs. 86 crores despite balance work pending and the estimate for it was only Rs. 41.49 crores. Soon after receipt of the reply to the notice, the petitioner filed the winding up petition as mentioned above. 11. On hearing both sides, now the point for consideration is as to whether this petition is maintainable as stated by the petitioner's counsel or not. 12. On perusal of the facts of the case, it appears that this work agreement has entered into between this petitioner and the partnership firm floated by the associate company of the petitioners, this corporate debtor and another partner. Now this petitioner has filed this company petition against this corporate debtor, which is one ....
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....tled to exercise jurisdiction unless it is barred by the statute as mentioned under section 9 of the CPC. 16. He further submits that even under the CPC also, if at all any creditor wants to proceed against a partnership firm, he has to array those partners as respondents representing on behalf of the firm. He submits that the concept of joint and several liability will not allow this petitioner to invoke Part II of this Code, because specific and exclusive jurisdiction has been conferred upon the Debts Recovery Tribunal under Part III of the Code to adjudicate the cases where the debtor is an individual or a partnership firm. To fortify this argument, counsel appearing on behalf of the corporate debtor has taken us to sections 78, 79(18),....
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.... individual debtor ; (c) any question of priorities or any other question whether of law or facts, arising out of or in relation to insolvency and bankruptcy of the individual debtor or firm under this Code." 17. Upon reading these provisions, it is evident that legislator has carved out under section 179 jurisdiction to proceed against individuals and partner-ship firms lies with the Debts Recovery Tribunal. By reading clause 18 of section 79 of the Code, it is evident that when it is a partnership debt, it has been categorically mentioned that all the partners in a firm are jointly liable. If you go by this definition, as to partnership debt is concerned, we have doubts whether creditor can proceed against one of the partners by invoki....