TaxTMI 
TaxTMI 
2019 (2) TMI 1115
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.... 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 Insolvency and Bankruptcy Code, 2016 (Code) for initiation of the corporate insolvency resolution process (CIRP) as enunciated under this Code. Historical facts 3. The petitioner states that by an agreement dated June 17, 2005 they entered into partnership to be known as M/s. Gammon Neelkanth Realty Corporation (GNRC) between this corporate debtor and two other entities, namely, M/s. Neelkanth Realtors P. Ltd., and Gammon Housing and Estates Developers Ltd. (this company belongs to the petitioner-Gammon India Ltd.). Subsequently, a contract was entered between the partnership firm and Gammon Neelkanth Realty Corporation-(GNRC) and the petitioner herein for completing construction of seven (7) residential buildings with facilities and amenities (being Phase-I of the "Neelkanth Kingdom Project" of GNRC) for a tender price of Rs. 88.75 crores s....
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....ain from making incorrect statements, the corporate debtor replied to the same on August 28, 2014 disputing the claim as well as requesting the petitioner side to discontinue sending further correspondence. But whereas, the petitioner, despite the corporate debtor side requested not to make any further correspondence, issued their purported "final bill settlement" for Rs. 50.43 crores to the partnership firm (GNRC). 7. Upon which the corporate debtor counsel submits that issual of second notice after 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 sat....
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....hat partnership firm. 13. If you read the Insolvency and Bankruptcy Code, it is apparent that this Code has been divided into two parts ; one part is to be dealt with by this Adjudicating Authority, i.e., the National Company Law Tribunal and another part is to be dealt with by the Debts Recovery Tribunal. In the cases where the corporate debtor is directly under obligation as per the agreement entered, those cases fall before this Adjudicating Authority, as to cases in between the debtors are individuals or partnership firms, they fall within the jurisdiction of the Debts Recovery Tribunal. Of course, till date, the jurisdiction given to the Debts Recovery Tribunal has not been notified. 14. When this Bench has put it to counsel of the petitioner as to how this Bench will get subject-matter jurisdiction to deal with this case, when the agreement has been entered in between the petitioner and partnership firm, the petitioner's counsel has argued that since the partners in this partnership firm are the companies and they being jointly and severally liable to the obligations of the firm, the petitioner is entitled to proceed against those companies before this Bench by invo....
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....ion over the place . . . (2) The Debts Recovery Tribunal shall . . . entertain or dispose of- (a) any suit or proceeding by or against the individual debtor ; (b) any claim made by or against the 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 invoking the concept of joint and several liability. Moreover, this is the jurisdiction given to the Debts Recovery Tribunal, therefore, we are of the view that we need not delve on it except saying jurisdiction is given to t....