TaxTMI 
TaxTMI 
TaxTMI 
2022 (6) TMI 1336
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....he writ petition was dismissed holding that the appellants have got an efficacious alternative remedy to approach the National Company Law Tribunal and therefore, the writ petition is not maintainable. 2. The basic material facts for the disposal of the appeal are as follows: The appellants mortgaged their properties to secure the dues of the company, M/s. Raihan Health Care Private Limited, availed from the first respondent, Union Bank of India, Erattupetta Branch. Thereafter, a lease deed was executed in favour of the company, which had mortgaged its leasehold property as a security for the facilities availed by it. Since there was failure on the part of the company in repaying the loan, the first respondent bank initiated an insolvency proceedings against the company and its assets. 3. Matters being so, the third respondent liquidator filed Ext. P1 application before the National Company Law Tribunal seeking a direction to respondents 1 and 2 i.e., the Union Bank of India as well as Meenachil East Urban Co-operative Bank Limited respectively to hand over the personal properties of the appellants, which was mortgaged to them to enable him to conduct sale of such properties. Th....
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....ants or both. It is also held that if the ownership rights of the appellants are included in the liquidation estate, that would be against Section 36 of the Insolvency and Bankruptcy Code, 2016 and that would give rise to a cause of action to the appellants to invoke Article 226 of the Constitution of India, especially when the order is passed without hearing the appellants. 6. However, in the present writ petition, it is held that the Tribunal reconsidered the matter and passed Ext. P14 order directing the Bank to hand over the physical possession of the mortgaged leasehold land of the Corporate Debtor to the liquidator in order to use it as the liquidation estate of the Corporate Debtor. It was accordingly that the writ petition was dismissed holding that the appellant has got an appellate remedy under Section 61 of the Insolvency and Bankruptcy Code, 2016. It is, thus, challenging the legality and correctness of the judgment of the learned single Judge, the appeal is preferred. 7. The paramount contention advanced by the appellants is that the learned single Judge egregiously erred in dismissing the writ petition on the ground of availability of alternative remedy, since the s....
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.... the earlier writ petition was allowed, it is only appropriate that the relevant part of Ext. P3 common judgment in W.P.(C) No. 3864 of 2021 and batch is extracted and they read thus: "23. When assets owned by third parties, share holders and partners are expressly excluded from Liquidation Estate, whether the Tribunal can permit the Liquidator to include ownership rights of the petitioners in the Liquidation Estate? The impugned order of the Tribunal is to include the "mortgaged properties" in the Liquidation Estate. In the aforementioned context, there exists a lack of clarity in the impugned order as to whether what is directed to be included in the Liquidation Estate is leasehold rights of the Corporate Debtor or the ownership rights of the petitioners or both. The lack of clarity is in respect of a matter affecting the constitutional right of the petitioners under Article 300A of the Constitution. The Tribunal has the power to decide the legal issue whether the ownership rights of the petitioners can be included in the Liquidation Estate, if the petitioners are Directors/Promoters of the Company/ Corporate Debtor as described by the Tribunal in the order impugned. Theref....
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....ned single Judge in Exhibit P3 judgment, the Tribunal reconsidered the matter and has clearly entered into a finding with respect of the liquidation estate by giving a probable and possible interpretation to the relevant provisions of the Insolvency and Bankruptcy Code, 2016, which is quite clear and evident from paragraphs 21 and 22 of the order of the Tribunal as extracted above. 14. Therefore, in our considered opinion, when a provision is interpreted by the Tribunal to arrive at a conclusion in regard to the application filed before it, it cannot be said that the Tribunal has passed the order without jurisdiction. At the most, what the appellants could allege is only the illegality of the order passed, which is a subject matter to be considered by the appellate Tribunal in terms of Section 61 of the Insolvency and Bankruptcy Code, 2016, which is a well defined provision exemplifying the powers of the Tribunal. 15. Sub-Section (1) of Section 61 clearly specifies that notwithstanding anything to the contrary contained under the Companies Act 2013, any person aggrieved by the order of the Adjudicating Authority under that part may prefer an appeal to the National Company Law App....