TaxTMI 
TaxTMI 
TaxTMI 
2022 (4) TMI 1478
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.... & Bankruptcy<br>THE HONOURABLE MR.JUSTICE N.NAGARESH FOR THE APPELLANT : BY ADVS. S.EASWARAN, P.MURALEEDHARAN (IRIMPANAM), K.V.RAJESWARI, V.K.PEERMOHAMED KHAN, FOR THE RESPONDENT : BY ADVS. S.SREEKUMAR (SR.), MANOJ RAMASWAMY, JOSEPH GEORGE, A.G.SATHYANARAYANA J U D G M E N T The petitioners, who have mortgaged their properties to secure the dues of M/s.Raihan Health Care Private Limited, have approached this Court seeking to quash Ext.P14 order of the National Company Law Tribunal, Kochi and to declare that properties of the petitioners included in Ext.P1 application stated to have been mortgaged to 1st and and 2nd respondents as guarantors, are not liable to be included in the Liquidation Estate of the Company M/s.Raiha....
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....reupon, the Tribunal directed the Banks to handover physical possession of the mortgaged leasehold land of the corporate debtor, to the Liquidator in order to use as Liquidation Estate. 5. The petitioners thereupon approached this Court filing W.P.(C) No.3864/2021 and connected cases. This Court found that the Bank has security interests in the properties involved under two heads. The properties are held by the corporate debtor under a lease agreement which permits the corporate debtor to mortgage their leasehold rights for raising funds. Furthermore, the petitioners are sureties to the loan transactions of the corporate debtor and their title documents in respect of the properties are deposited with the Bank. This Court held that Liquidat....
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....dation against all the properties mortgaged by the Corporate Debtor. Second respondent even though stated that they will be proceeding against the Personal Guarantors, till date no steps taken by them against the guarantors. Hence, both parties are in favour of the liquidation proceedings against the Corporate Debtor. The only thing is that the Personal Guarantors are opposing the action taken by the liquidator, which they are not entitled to because they have given on lease their properties to the Corporate Debtor and the Corporate Debtor has been put under liquidation. In such an event, the respondents 3 to 8 are estopped from seeking a relief from this Tribunal, that their properties cannot be treated as properties of the Corporate Debto....
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.... sustained. 23. Hence, we affirm our order passed on 1st February, 2021 in MA/76/KOB/2020 and ordered as under: a. Both Respondents are directed to hand over the physical possession of the mortgaged leasehold land of the Corporate Debtor (both Express Lease & Implied Lease lands used by the Corporate Debtor) to the Applicant in order to use as the Liquidation Estate of the Corporate Debtor. b. The Applicant is also permitted to add the mortgaged land (Express Lease-100.16 Ares & Implies Lease- 78.45 Ares) into the Liquidation Estate of the Corporate Debtor of the respondents 3 to 8, to the liquidation Estate of the Corporate Debtor. c. The Liquidator is directed to strictly follow the procedures to take over the property in question....
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....le. The learned counsel also relied on the judgment in Pushpa Shah v. Union of India and others [2019 SCC Online Bom 2019] and argued that when a statutory authority has not acted in accordance with the provisions of enactment in question, exercise of writ jurisdiction is warranted. 10. The 3rd respondent-Liquidator filed a counter affidavit. The 3rd respondent stated that any person aggrieved by the order of the NCLT can prefer an appeal to the NCLAT. Since the petitioners have efficacious alternate remedy, the writ petition is not maintainable. The learned counsel for the 3rd respondent relied on a Division Bench judgment of this Court in Sulochana Gupta and others v. RBG Enterprises Private Limited and others [W.A. No.1083/2020) and a j....
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....rights of the petitioners or both. If the ownership rights of the petitioners are included in the liquidation estate that would be against Section 36 of IBC and that would give rise to a cause of action to the petitioners to invoke Article 226 of the Constitution of India, especially when the order is passed without hearing the petitioners. 14. It was under the afore circumstances that this Court entertained W.P.(C) No.3864/2021 and connected cases and directed the Tribunal to pass orders afresh on the issue of inclusion of the land of the petitioners in the liquidation estate. The NCLT considered the matter and passed Ext.P14 order directing the Banks to handover the physical possession of the mortgaged leasehold land of the corporate deb....