TaxTMI 
TaxTMI 
2020 (11) TMI 10
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....teners Limited under Section 60(5) (c) of the Insolvency and Bankruptcy Code, 2016 (Code) seeking the following reliefs: a) That this Hon'ble Tribunal be pleased to pass an order and declare that the occupation of the Subject property by the Respondent, by themselves, their respective servants, officials, representatives and agents is illegal; b) That this Hon'ble Tribunal be pleased to pass an order and direct the Respondent, by themselves and their respective servants, officials, representatives and agents to vacate and handover the peaceful possession of the subject property to the Applicant; c) That the Hon'ble Tribunal be pleased to order and direct the Respondent to pay a sum of Rs. 1,94,953 (Rupees One lakh ninety four thousand nine hundred fifty three) towards outstanding rent/ compensation in respect of the subject property to the Applicant along with interest of Rs. 12235 (Rupees Twelve thousand two hundred and thirty five) calculated at the rate of 12% per annum from the date of default till November 26, 2018 as per the statement annexed at Exhibit - O hereto. d) That the Hon'ble Tribunal be pleased to order and direct the Respondent f....
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....moter of the Corporate Debtor previously entered into leave and license agreement with the respondent in respect of the property and thus the respondent has taken possession of the property under the leave and license agreement. It is further submitted that the Corporate Debtor does not have a copy of the leave and license agreement (which has already been expired). It is also submitted that leave and license agreement is also not traceable. The applicant submits that he has sent a notice on 17/04/2018 requesting the respondent to vacate and handover the possession of the property to the liquidator on or before 10/06/2018, for which the respondent through its advocate filed reply dated 14/05/2018 and refused to hand over the possession of the property. The said reply reveals that the respondent on the request of the Corporate Debtor has paid Municipal Tax in respect of the property which was later adjusted towards rent paid to the Corporate Debtor. Further the respondent used to pay rent to the Corporate Debtor. The applicant submits that the above facts clearly shows that the Corporate Debtor is the owner of the property. The applicant by his letter dated 08/06/2018 addressed to t....
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.... letter and even erstwhile management of the corporate debtor also confirmed that letter dated 02/02/2018 was not addressed by them. The applicant submits that the letter dated 02/02/2018 is a forged one and the corporate debtor has not been using the letter head used in the letter dated 02/02/2018. It is submitted that the letter was addressed with the malafide motive with an intent to defraud the corporate debtor to usurp the property. 9. The applicant submits that the respondent wrongfully contended that he is a tenant in the West Bengal Tenancy Act, 1997. In fact Section 3 of the West Bengal Tenancy Act, 1997 specifically provides that in certain circumstances provisions of West Bengal Tenancy Act, 1997 do not apply when the property is let out for non-residential purpose which carries monthly rent of more than Rs. 10,000/-. Since the respondent has paid rent of Rs. 21,000/- for the month of May 2018, respondent will not get any benefit from the West Bengal Tenancy Act, 1997. The applicant submits that as per section 35(d) of the Code, the liquidator is empowered to take into his custody or control of all the assets, property, effects, actionable claims of the corporate debt....
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.... (i) assets held in trust for any third party; (ii) bailment contracts; (iii) all sums due to any workman or employee from the provident fund, the pension fund and the gratuity fund; (iv) other contractual arrangements which do not stipulate transfer of title but only use of the assets; and (v) such other assets as may be notified by the Central Government in consultation with any financial sector regulator; (b) assets in security collateral held by financial services providers and are subject to netting and set-off in multi-lateral trading or clearing transactions; (c) personal assets of any shareholder or partner of a corporate debtor as the case may be provided such assets are not held on account of avoidance transactions that may be avoided under this Chapter; (d) assets of any Indian or foreign subsidiary of the corporate debtor; or (e) any other assets as may be specified by the Board, including assets which could be subject to set-off on account of mutual dealings between the corporate debtor and any creditor." - and submits that the respondent be directed to release or vacate the subject property ....
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....t has no information relating to creation of security relating to the office space in favour of any secured creditor of the corporate debtor. 14. It is submitted that the applicant objected to the eviction notice dated 17/04/2018 sent by the respondent. It is further submitted that the applicant filed MA No. 546/2018 challenging the eviction notice, on the file of NCLT, Mumbai. The applicant in response to the notice dated 08/06/2018 issued by the respondent, replied on 27/06/2018 stating that the applicant is ready to pay rent to the respondent subject to production of document to establish that the property belongs to the Corporate Debtor. It is further submitted that the applicant withdrawn the abovesaid application No. 546/2018 on 06/08/2018 with liberty to file fresh application. The applicant further submits that the respondent admitted that the ownership of the property has not been lying with the Corporate Debtor even though one Mrs. Pushpadevi Jain has assigned and transferred all her rights, title and interest in respect of the premises in favour of the Corporate Debtor but the said agreement is not registered. It is submitted by the respondent that by a subsequent let....
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.... parties and exercise rights for the benefit of the corporate debtor in judicial, quasi-judicial and arbitration proceedings. Section 25(1) and 25(2)(b) reads as follows: 25. Duties of resolution professional - (1) It shall be the duty of the resolution professional to preserve and protect the assets of the corporate debtor, including the continued business operations of the corporate debtor. (2) For the purposes of Sub-section (1), the resolution professional shall undertake the following actions: (a)............. (b) represent and act on behalf of the corporate debtor with third parties, exercise rights for the benefit of the corporate debtor in judicial, quasi judicial and arbitration proceedings. This shows that wherever the corporate debtor has to exercise rights in judicial, quasi-judicial proceedings, the resolution professional cannot short-circuit the same and bring a claim before NCLT taking advantage of Section 60(5)". 17. Further it is beneficial to refer the recent judgment of the Hon'ble NCLAT dated 20/02/2020 in the case of K.L Jute Products Private Limited...Vs...Tirupti Jute Industries Ltd. and Ors. (MANU/NL/....
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....t of any matter on which National Company Law Tribunal or the National Company Law Appellate Tribunal has jurisdiction under this Code". "231. Bar of jurisdiction. - No civil court shall have jurisdiction in respect of any matter in which the Adjudicating Authority is empowered by, or under, this Code to pass any order and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any order passed by such Adjudicating Authority under this Code". 21. The above provisions show that when the Adjudicating Authority is provided with a specific jurisdiction, the Civil Courts have no jurisdiction in respect of those matters such as Preferential transactions (sections 43 and 44 of the Code), Undervalued transactions (sections 45 to 48 of the Code), etc. When these provisions are read in conjunction with other provisions of the Code such as 18(f)(vi), 25(2)(b) and 35(1)(k) of the Code, the jurisdiction of the Adjudicating Authority does not extend to subjects such as recovery of money, specific performance, eviction proceedings, etc. which were to be dealt with by Civil Courts only. It is to be borne in m....