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2022 (4) TMI 1478 - HC - Insolvency and BankruptcyMaintainability of petition - availability of alternative remedy - Mortgaged property of the petitioners mortgaged to 1st and and 2nd respondents as guarantors - to be included in liquidation estate of the Company M/s.Raihan Health Care Private Limited. or not - HELD THAT:- This Court finds that against Ext.P14 order of the NCLT, the petitioners have an alternate remedy of appeal to the NCLAT under Section 61 of the IBC. It is true that a writ petition was found maintainable earlier as is seen from Ext.P4 judgment. In Ext.P4 judgment, this Court found that the order of the NCLT impugned therein lacks clarity inasmuch as 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. 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. What is directed to be included in the Liquidation Estate, is the leasehold rights given to the Bank. Such leasehold rights can be included in the Liquidation Estate. The Tribunal passed the order after hearing the petitioners. In the facts and circumstances of the case, the judgments in Embassy Property Developments Private Limited [2019 (12) TMI 188 - SUPREME COURT] and Pushpa Shah [2019 (3) TMI 1688 - BOMBAY HIGH COURT] are of no assistance to the petitioner, fromwhere it can be inferred that when there is lack of jurisdiction in NCLT to include 3rd party's properties in Liquidation Assets, a writ petition under Article 226 is maintainable. This Court does not find any reason to entertain a writ petition under Article 226 of the Constitution of India, when the petitioners have alternate remedy of appeal as provided under the IBC - Petition dismissed.
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