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2018 (5) TMI 369 - Tri - Insolvency and BankruptcyApplication filed by the Resolution Professional through Corporate Debtor - entitled to the exclusive possession of the property despite no right has been accrued to this Corporate Debtor - sought the reliefs as to direct this respondent to refrain from taking over the possession of the said land till the completion of corporate insolvency resolution process subject to the proviso u/s 14(1)(d) of the Code - Held that:- Since NCLT has been dealing with IB Code over an year, we hardly come across any case wherein corporate debtor denying the claims filed by a Financial Creditor, likewise in the case u/s 9 as well whenever Operational Creditor makes a claim, for the legislature is conscious of the fact that there could be a possibility of dispute in respect to the items mentioned in the definition of dispute, an additional caveat has been introduced in the cases of Operational Debts stating that wherever a dispute as stated in the definition is in existence before receipt of section 8 notice, such claims shall not be entertained by this Adjudicating Authority. The impediment that comes to this Bench for deciding such claim is, some other creditor may say that it has filed case before some other court, another creditor may say it has filed case before DRT under SARFAESI, which normally causes delay either for resolution or for liquidation of the corporate debtor, to avoid such kind of defences and to bring all creditors under one umbrella, an overriding provision has been set out u/s 238 of the Code which can never be construed that it is a provision come into existence to bulldoze the rights of the parties. It is understandable those creditors who are prevented to go before various forums are entitled to come before this Bench. Their right of remedy will not get extinguished by the overriding effect given under section 238, but what will happen to other persons having some other rights against this company because they may not fall under the category of creditors so by showing 238 if their rights are denied it will become nothing but extinguishment of rights of the parties, which is not permissible under any law. Whether this Bench can ignore such situation saying that since it is Section 7 or 9 petition, it will pass an admission order thereafter to proceed with CIRP ignoring the fraud manipulated by the company through its management. There can be myriad situations such as above causing uncertainty to the rights of the parties, if section 238 is applied without taking the context involved in the case into consideration. In view of the reasons above mentioned, this Bench has not found any merit in the application moved by the Resolution Professional/Petitioner is hereby dismissed
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