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TMI Blog2019 (12) TMI 1374X X X X Extracts X X X X X X X X Extracts X X X X ..... er directing the Resolution Professional to take possession of the Shed from the applicant was passed and dissenting order dismissing the application was passed on 20.08.2019. 3. The said matter was referred to me as a third member as there was a difference of opinion among the members vide orders dated 04.11.2019. the matter was initially posted for hearing on 05.11.2019 and posted to final hearing on 14.11.2019. 4. This court had vide its order dated 11.12.2018 admitted the Petition filed by the Corporate Applicant under Section 10 of the Code declaration moratorium. As a consequential direction this bench also appointed Mr. Suresh Saluja as the Interim Resolution Professional (hereinafter called "IRP"). 5. According to the Applicant, on 21.12.2018 he received a letter from the IRP, who informed him about the above Company petition. Vide his letter the IRP further stated that the Applicant herein is allegedly in illegal occupation of a Shed owned by the Petitioner viz. Shed bearing No. D3-3 at Honda Industrial Estate, Goa, and called upon the Applicant to handover possession of the said Shed to the IRP by removing Applicant's movables from the said Shed. Applicant was call ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Hon'ble Civil Court at Bicholim, Goa seeking possession of the said shed from the Applicant. 11. The Resolution Professional further pointed out in his reply that since he has been appointed as the Interim Resolution Professional by this court, it is his duty to take control and custody of any asset over which the Corporate Applicant has an ownership right including assets which may or may not be in the possession of the Corporate Applicant. The Applicant is claiming lien on the Shed under the guise of a pending suit before Civil Court and there is no interim order therein. Therefore, as per the Resolution Professional the same cannot prejudice the right of Resolution Professional under the provisions of the code and has further prayed that he may be allowed to take possession of the said Shed. 12. The counsel for the Petitioner argued and relied on a judgement of "Swiss Ribbons (P) Ltd. Vs. Union of India" wherein the Hon'ble Supreme Court at para 88 held as follows; "it is clear from a reading of the Code as well as the Regulations that the resolution professional has no adjudicatory powers." Therefore, he asserted that the Resolution Professional has a duty to ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd liable to be dismissed. The Court held that the such a dispute, which not only existed but stood recognised as a sub judice claim for which an inbuilt mechanism was incorporated in the resolution plan, could not be extinguished, merely because CIRP process had been undertaken. The Court at para 37 held as follows: "the aforesaid position of law, when applied to the facts of the present case clearly demonstrates that the attempt to the facts of the present case clearly demonstrates that the attempt on the part of the Petitioner to escape liability of paying dues of respondent no.1 as an operational creditor, was correctly shot down by the Trial court by passing the impugned order." Therefore, it is held that the suit filed by respondent no.1 cannot be dismissed as claimed by the Petitioner. Accordingly, the writ petition is found to be without any merit and it is dismissed. 16. Further the counsel for the Applicant claimed that pending finalisation of suit, the possession of the Shed cannot be sought for by the Resolution Professional and he has only an administrative function and has no adjudicatory powers to claim possession of the Shed. 17. The counsel representing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain any suit or proceedings and grant interim injunction restraining encashment of bank guarantees and the objection of the defendants to the subject jurisdiction of the Civil Court was for consideration and whether NCLT has the jurisdiction under the I &B Code, 2016. The Court at para 43, 45 and 46 held as follows; "43. It cannot also be lost sight of that in the whole process, considerable time, out of the time bound schedule in terms of the Code for the resolution process, has been wasted and wastage of which time may ultimately result in the possibility of Castex and ARGL Limited being restructured ceasing to exist and being inevitably required to be liquidated, all at the cost of the creditors thereof and wastage of the stressed assets of the said two companies. The loss caused by such conduct of the plaintiff is thus mammoth, having adverse consequences on all the creditors and shareholders of the said two companies and also on the economy of the country and to remedy which, the code was enacted. The NCLT is best equipped to also deal with apportionment of the amount of the BBGs in proper account. "45. On merits also thus, I do not find the plaintiff entitled to a restra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt or Corporate Person by or against any of its subsidiaries situated in India; and (c) Any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the Corporate Applicant or Corporate Person under this Code. 23. Section 60(5) and (b)(c) of the Code empowers NCLT to entertain the dispute raised in the suit, section 63 of the Code further bars the jurisdiction of the civil court in matters pertaining to the NCLAT, section 231 of the Code also bar the jurisdiction of the civil court from granting any injunction in respect of any action taken or in pursuance of any order passed by the Adjudicating authority under this Code. This code is a self-contained legislation conferring the supervisory powers on the NCLT over CIRP process right from the stage of application being made for initiation of the CIRP process to the completion of the CIRP/ Liquidation as the case may be. Upon conjoint reading of section 60(5), section 63, section 231 and section 238, the jurisdiction of Civil Court is excluded related to the matters related to I & B code. Therefore, it can be held that NCLT can order possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the suit till payment, being the value of the material belonging to the plaintiffs, which is in possession of the defendant; IV) The costs of this suit be awarded to the plaintiffs. And the other Special Suit No.23 of 2009 on the file of Court of Civil Senior Judge, senior division at Bicholim, Goa filed by the Applicant for recovery of money for the following prayers: A) "That the plaintiffs are entitle to recover from the defendants a sum of Rs. 1,40,000/- being the rent/hire charges of the said milling machine from 01.11.2006 to 28.02.2009 along with the interest at the rate of 10% p.a. and further Rs. 5,000/- per month from 01.03.2009 till the said milling machine is reinstalled by the defendant in the Shed No. D3-3 of the plaintiffs at Honda Industrial Estate. B) The plaintiffs are also entitled for a direction to the defendant to reinstall the said milling machine back in the Shed No. D3-3 at Honda Industrial Estate at the place where it was installed and from where the defendant had shifted the same. C) Any other and further order this Hon'ble Court deems fit and proper in the circumstances of the suit. D) For a cost." It is the case of Corporate Applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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