TMI Blog2020 (1) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication, the relief asked by the applicant not having any bearing over the rights of the other parties and the dues payable to each other, and no public law being involved in between the parties, we are of the view that we have jurisdiction to pass a limited order directing the RP to present at the time of taking final measurements - if a middleman is there at the time of taking measurements, it will remain as proof to both the parties to the measurements, therefore we direct CPWD, Kerala to depute an officer (Engineer) of CPWD having expertise in construction at the time of taking final measurements at the cost of the applicant. The applicant shall inform the RP two weeks before taking the final measurements so as to enable him to atten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el is that this Bench has no jurisdiction to deal with the subject matter, and this issue cannot be decided unless dues outstanding to the corporate Debtor are paid to it. To substantiate his argument to say that this bench has no jurisdiction, the RP Counsel, Mr. Mehta has relied upon the ratio decided in M/s. Embassy Property Developments Pvt. Ltd. v. State of Karnatka Ors., (Civil Appeal No. 9170 of 2019 decided on 03.12.2019) by taking us to para numbers 3 (12), 9,29,36,39, 40 45. Before going into the ratio decided in the citation supra, it is imperative to brief the facts of this Application. The applicant is a reputed National Institute of Technology Calicut, governed by NIT Act, running a fully residential institution w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o enter into agreement with somebody else and also to ascertain the work done by the Corporate Debtor, it is essential to take the measurement of the work done by the corporate debtor, for which, when the Applicant reminded the RP to present at the work site and also to unlock some rooms locked up by the Corporate Debtor, the RP simply has remained not responded. Now the grievance of this applicant is that, if this RP at least provide measurement of the work done or at least he is present at the time of taking final measurements and reconciliation of the work already done, this Government Institution would be in a position at least to have rearrangement with CPWD or some other agency to get it completed soon and made available for the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tio held in the citation supra is that section 60(5) of the IBC is not meant for the corporate debtor/RP to exercise a right that falls outside the purview of the IBC. The factual aspect in the case supra is, the RP proceeded before NCLT against State of Karnataka for adjudication of the disputes arising out of the grant of mining lease under MMDR Act 1957, in that context, the Honourable Supreme Court held that issues falling outside the purview of CIRP will not fall within the ambit of Section 60(5) of the Code. The similarity in between the case supra and the given case is, unfortunate part is Government is the aggrieved, and there the related parties of the Corporate Debtor tried to corner the benefits of the mining lease under the garb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he RP is not expected to bring the activities of the persons other than the Corporate Debtor to halt by holding out IBC. There is a chequered history between the corporate debtor and the applicant, it appears that the case is filed in High Court of Kerala and matter went before Arbitrator and that was also terminated on 22.06.2019 because the arbitrator himself reported to the High Court of Kerala saying that he was unable to complete the arbitration because the RP was not co-operating. For the debtor having failed to complete it, the applicant finally terminated the agreement on 22.06.2019. Since it is a miscellaneous application, the relief asked by the applicant not having any bearing over the rights of the other parties and the dues ..... X X X X Extracts X X X X X X X X Extracts X X X X
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