TaxTMI 
TaxTMI 
2022 (1) TMI 163
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....tiated against the Corporate Debtor - Radius Infratel 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 in....
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....ng etc. and no consumer will be forced to take connection of a particular internet service provider. Orders were issued by 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 Pro....
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....sel for the Appellant submits that challenging the said order, the Appellant has already filed a Writ Petition in Allahabad High Court, which Writ Petition is still pending. 4. Learned Counsel 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 Appellan....
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.... process, the prayers in the Application were made to stall the implementation of the order of the District Magistrate dated 22nd August, 2020. 8. The question to be answered in this Appeal is as to whether 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....
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....is interpreted to include all questions of law or facts under the sky, an Interim Resolution Professional/Resolution Professional will then claim a right to challenge the order of the Income Tax Appellate Tribunal 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 ....
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....s nothing to indicate that the termination of the Facilities Agreement was motivated by the insolvency of the Corporate Debtor. The trajectory of events makes it clear that the alleged breaches noted in the termination notice dated 10 June 2019 were not a smokescreen to terminate the agreement because of the insolvency of the Corporate Debtor. Thus, we are of the view that the NCLT does not have any residuary jurisdiction to entertain the present contractual dispute which has arisen dehors the insolvency of the Corporate Debtor. In the absence of jurisdiction over the dispute, the NCLT could not have imposed an ad-interim stay on the termination notice. The NCLAT has incorrectly upheld the interim order of the NCLT." 11. It is also relevant to note that in the CIRP proceedings in the present case, order for liquidation was passed on 31st May, 2021 by the Adjudicating Authority. By consequent order dated 16th November, 2021, the Adjudicating Authority has confirmed the auction sale of the Corporate Debtor held on 16th August, 2021. The act of providing internet services to the residents by other internet providers apart from the Appellant, emanated from the order of District Magi....