TaxTMI 
TaxTMI 
2022 (1) TMI 163
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....l Pvt. Ltd. by order dated 23rd July, 2018 of the Adjudicating Authority. (ii) the Adjudicating Authority directed for liquidation of the Corporate Debtor. (iii) Corporate Debtor had entered into a Indefeasible Right of Use (IUR) Capacity Agreement with Jaypee Infratel Private Limited in the year 2013. Under the terms of Agreement, the Corporate Debtor had agreed to build own, operate, manage, maintain, update and upgrade the sole ICT (Information, Communication & Technology) network (hereinafter called the 'NANO Infrastructure') in the project to transmit various information, communication and entertainment services at the said project. These services were being provided to the residents of Jaypee Greens, Wishtown Noida and Jaypee Greens, Greater Noida using the Corporate Debtor's NANO network. (iv) Complaints were submitted before the District Magistrate, Gautam Buddha Nagar that in Jaypee Greens, Wishtown Noida and certain other projects, the Appellant was adopting monopolistic practice in regard to providing internet services through the Corporate Debtor only whereas the residents wanted the avail internet services of Reliance Jio or Airtel. (v) A meeting was held in th....
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.... the City Magistrate on 25th September, 2020, 30th September, 2020 and 23rd October, 2020 addressed to Jaiprakash Associates Ltd. and J.P. Greens Wishtown. (vii) District Magistrate issued another order dated 27th October, 2020 to Jaiprakash Associates Limited and Jaypee Greens Wish Town. (viii) An IA No.4052 of 2020 was filed by the Appellant herein before the Adjudicating Authority, in which reference of the order of the District Magistrate dated 22nd August, 2020 was also made. In the Application, the following prayers were made: "a. Allow the present Application under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 and i. Stay any steps/ actions taken or to be taken by the Respondents in contravention of the terms of the IRU Agreements, including setting up of any parallel network, and/ or ii. restrict the Respondents permanently from contravening the terms of the IRU Agreements entered with both the Respondents; and iii. Direct the Respondents to remove all the unauthorized Internet Service Providers (ISPs) from the premises of the Respondents covered under the IRU Agreements, and/ or iv. Pass such further Order(s) that this Ld. Adjudicating Authority d....
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....for the Respondent Shri Vishal Gupta refuting the submissions of the learned Counsel for the Appellant contends that it was by virtue of District Magistrate's order dated 22nd August, 2020, which permitted other internet service provider to provide services to the residents. The NCLT has no jurisdiction to entertain any challenge to the action consequent to the order of District Magistrate. The order of District Magistrate was passed under National Disaster Management Act, 2005, which could not have been interfered with by the Adjudicating Authority. The citizens have fundamental right to have internet services and they have right to choose internet service provider. The Appellant by virtue of Agreement with Respondent cannot curtail the right of citizens to use internet services. Furthermore, it was during the period of currency of Covid-19 that the use of internet was maximum and right of the residents to choose internet service provider, could not have been interfered with. The Appellant obtained the interim order dated 27.10.2020 from the Adjudicating Authority, which ought not to have been passed, which has rightly been cancelled by the subsequent order dated 5th July, 2021 by....
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....ether the Adjudicating Authority had jurisdiction to pass the interim order in the Application filed by the Appellant, the effect of which was to stop the implementation of the order dated 22nd August, 2020 passed by the District Magistrate. 9. We may in this context refer the judgment of Hon'ble Supreme Court in Embassy Property Developments Private Ltd. vs. State of Karnataka and Ors. (2020) 13 SCC 308. In the above case, Corporate Debtor had been granted a mining lease by the Government of Karnataka, which was to expire on 25th May, 2018. Although notice of premature termination of the lease was issued on 9th August, 2017, but no order of termination was passed till the date of initiation of the Corporate Insolvency Resolution Process. Government of Karnataka on 26.09.2018 rejected the proposal for deemed extension of the lease on the ground that Corporate Debtor had contravened not only terms and conditions of the lease deed, but also the provisions of Rule 37 of the Mineral Concession Rules, 1960 and Rule 24 of the Minerals (Other than Atomic and Hydra Carbons Energy Minerals) Rules, 2016. After withdrawal of the Writ Petition from the High Court, an Application was filed bef....
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.... before the NCLT, instead of moving a statutory appeal under Section 260-A of the Income Tax Act, 1961. Therefore the jurisdiction of the NCLT delineated in Section 60(5) cannot be stretched so far as to bring absurd results. [It will be a different matter, if proceedings under statutes like Income Tax Act had attained finality, fastening a liability upon the corporate debtor, since, in such cases, the dues payable to the Government would come within the meaning of the expression "operational debt" under Section 5(21), making the Government an "operational creditor" in terms of Section 5(20). The moment the dues to the Government are crystallised and what remains is only payment, the claim of the Government will have to be adjudicated and paid only in a manner prescribed in the resolution plan as approved by the adjudicating authority, namely, the NCLT. 41. Therefore in the light of the statutory scheme as culled out from various provisions of the IBC, 2016 it is clear that wherever the corporate debtor has to exercise a right that falls outside the purview of the IBC, 2016 especially in the realm of the public law, they cannot, through the resolution professional, take a bypass ....