TaxTMI 
TaxTMI 
2021 (6) TMI 937
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....w Market, Kolkata 700087; 2.2. The applicant had entered into a commission agreement with the corporate debtor on 13.11.2014 for a period of nine years, whereby the corporate debtor would utilise the premises for its leather business and shall pay the applicant as the commission agent, commission at 3% of the total sale on a monthly basis, subject to a minimum guaranteed return of Rs. 2.00 lakh. 2.3. The monthly commission as above was required to be paid within the 10th day of every month, in default of which the corporate debtor was liable to pay interest @12% per annum. 2.4. From April 2016 onwards, the corporate debtor starting defaulting in making payments to the applicant. Between April 2016 and February 2017, the corporate debtor made part payments of Rs. 8,10,000/-, leaving a total of Rs. 30,19,513/- upto November 2017 inclusive of interest, as unpaid. 2.5. On 13.06.2016, the corporate debtor sought to reduce the monthly guaranteed return of Rs. 2.00 lakh to Rs. 1.10 lakh on grounds of losses sustained in its business. The applicant has, therefore, filed a civil suit bearing CS No. 12/2018 before the Hon'ble Calcutta High Court for the said sum of Rs. 30,19,513/- in....
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....from third party and also for giving back vacant and peaceful possession of the premises. However, the liquidator has not acted in accordance with the requests. 2.12. The applicant is not only entitled to the premises, but also to the sums collected from the third party. Additionally, it is also entitled to the minimum commission guarantee of Rs. 2.00 lakh per month in terms of the commission agreement dated 13.11.2014. 2.13. The applicant had filed CA (IB) No. 981/KB/2018 in CP (IB) 432/KB/2018, for an order directing the respondents to give back vacant and peaceful possession of the premises to the applicant. The annual accounts of the corporate debtor for the year 2014-15 would reveal that the said premises are not the asset of the corporate debtor. When the said application was taken up on 21.01.2019, the Adjudicating Authority did not consider the submissions made and instead directed the applicant to file its claim with the liquidator, who was to consider the claim on its own merit. The Adjudicating Authority passed the order for liquidation of the corporate debtor on 29.01.2019. Now, therefore, the order dated 21.01.2019 has merged with the order dated 29.01.2019. 2.14. B....
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....irecting the respondents to give back vacant, peaceful and actual possession of the said premises to the applicant; (g) Direction on the liquidator for serving a copy of the application in CA (IB) No. 1415/KB/2019 filed by the liquidator, and an opportunity be given for filing a reply thereto. 3. The liquidator's reply 3.1. The liquidator has filed a reply, wherein he has questioned the maintainability of the application, which has been filed under section 333 of the Companies Act, 2013. The liquidator states that the application is filed on a mere apprehension, and that cannot be the basis for maintaining an application. He has also drawn attention to the order dated 27.03.2019 passed by the Hon'ble NCLAT, dismissing the appeals filed by the applicant. The order of dismissal has also been sustained by the Hon'ble Supreme Court. 3.2. The liquidator has also received the claim of the applicant to the tune of Rs. 67,07,118/-, which has been duly verified and admitted. 3.3. The liquidator has also referred to the fact that the applicant has filed a Title Suit in a city civil court praying for permanent injunction. The suit is still pending for adjudication. The appli....
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....for an order declaring that the premises at No. 15, Lindsay Street, Police Station-New Market, Kolkata 700087, is outside the scope of moratorium of the corporate debtor. 4.6. The CIRP has come to an end with the order dated 29.01.2019 ordering the liquidation of the corporate debtor. With this, the moratorium that kicked in with the order of admission dated 13.06.2018 has also run its course. Since the corporate debtor is in liquidation, the provision that now govern initiation or continuation of legal proceedings is section 33(5), which reads as follows:- "(5) Subject to section 52, when a liquidation order has been passed, no suit or other legal proceeding shall be instituted by or against the corporate debtor: Provided that a suit or other legal proceeding may be instituted by the liquidator, on behalf of the corporate debtor, with the prior approval of the Adjudicating Authority." 4.7. While section 14 of the Insolvency & Bankruptcy Code, 2016, is a broad-spectrum moratorium prohibiting all kinds of action against the corporate debtor, section 33(5) confines itself only to initiation of legal proceedings by or against the corporate debtor. The proviso to section 33(5) ma....