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2021 (4) TMI 1347 - KERALA HIGH COURTMaintainability of petition - availability of alternate remedy - Recovery of dues from the company - Mortgage of properties to the Bank as security for the advances to the Company - petitioners stood as guarantors - whether the NCLT can pass orders in respect of the properties of guarantors to a Corporate Debtor without initiating proceedings against the personal guarantors? - whether properties of guarantors to a Corporate Debtor can be transferred by NCLT to the Liquidation Estate of a Corporate Debtor without notice to and without hearing the guarantors? - whether when the petitioners as mortgagers have right to redemption under the Transfer of Property Act, 1882 whether such property can be included by the Tribunal in the Liquidation Estate of a Corporate Debtor making such properties answerable to other liabilities of the Corporate Debtor as well? HELD THAT:- If an efficacious alternate statutory remedy is available to the petitioner to challenge the impugned order of the Tribunal, this Court shall not ordinarily entertain a writ petition. The fact that an appeal under Section 61 of the IBC is available to the petitioner, is not controverted by the petitioners. The issue of maintainability of writ petitions against orders of NCLT passed under IBC 2016, is no more res integra. In M/S EMBASSY PROPERTY DEVELOPMENTS PVT. LTD. VERSUS STATE OF KARNATAKA & OTHERS [2019 (12) TMI 188 - SUPREME COURT] the Hon’ble Apex Court considered the distinction between lack of jurisdiction of a Tribunal and a wrongful exercise of available jurisdiction and held that when Article 226 is sought to be invoked bypassing a statutory alternative remedy, the High Court should certainly take into account the distinction between the lack of jurisdiction and wrongful exercise the available jurisdiction. 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 agreement permits the Corporate Debtor to mortgage their leasehold rights. The Corporate Debtor had mortgaged their leasehold rights to the Bank for raising funds. Secondly, the petitioners have stood as sureties to the loan transaction of the Corporate Debtor and their title documents in respect of the properties are deposited with the Bank. In view of Section 34 of the IBC, all powers of the Board of Directors and Key Managerial Personnel of the Corporate Debtor including the power to deal with the leasehold rights held by the Corporate Debtor vests with the Liquidator. The petitioners would state that they are entitled to notice and to be heard before the Tribunal takes any decision to include their property in the Liquidation Estate and that the impugned order of the Tribunal is violative of the principles of natural justice. The learned Counsel for the respondents on the other hand would urge that IBC does not contemplate issuance of notice to the petitioners and since this Court and the Apex Court have held that the IBC is a self contained Code, no notice need be issued to the writ petitioners, in respect of M.A.No.76/KOB/2020 in which the impugned order is passed by the Tribunal. The impugned order is set aside to the extent it allows the Liquidator to add the mortgaged land of the petitioners into the Liquidation Estate - application allowed.
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