TMI Blog2019 (8) TMI 1600X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Professional seeking possession of the Shed is to help the company. Therefore, if the arguments of the Applicant are given any weightage, and the Shed is not given in the possession of the Resolution Professional the same would cause heavy prejudice to the Petitioner and defeat the purpose of the Code - It is also brought to our notice that the time period of moratorium is now over and no result has come out it. Thereafter, a Miscellaneous Petition was filed by the Petitioner for liquidation. Therefore, subject to admission of application, the possession of the said Shed will pass on to the Liquidator once he/she is appointed as per the orders of the court. Application dismissed. - MA Nos. 130 and 1971/2019 in C.P. (IB)-3863/MB/2018 - - - Dated:- 20-8-2019 - Bhaskara Pantula Mohan, Member (J) And V. Nallasenapathy, Member (T) For the Appellant : Nirav Parmar, Advocate and K. Ashar Co. For the Respondents : Rahul Dev, Advocate ORDER Bhaskara Pantula Mohan, Member (J) 1. This Miscellaneous Application is filed by Pravin Blaggan (hereinafter called Applicant ) in view of the order passed by this Tribunal dated 11.12.2018 in the matter of Goa Auto A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Shed by the Applicant is sub judice before the Court of Civil Judge Senior Division, Goa. Applicant also submits that he has replied to the IRP's letter dated 21.12.2018 vide his letter dated 29.12.2018. 7. The Applicant further submits that in interest of justice and equity the Applicant has sought intervening from this Tribunal, seeking an opportunity to make submissions and be head in the matter of Shed. It is also prayed by the Applicant that the Tribunal may order the IRP, refraining him from acting in furtherance of its letter dated 21.12.2018. 8. The Resolution Professional has also filed a reply to the Miscellaneous Application. Vide this reply the Resolution Professional submitted that the Petitioner had given the right to use the aforementioned Shed to the Applicant for setting up a wielding, fabrication, milling, drilling and deburring unit for carrying out job work for the Petitioner. 9. Further it is submitted by the Resolution Professional that as per Clause 7 of the Agreement, Petition was entitled to ask the Applicant to vacate the said Shed within one month of such notice. As per the Resolution Professional certain disputes arose between the Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information collected with the information utility, if necessary; and (f) take control and custody of any asset over which the corporate debtor has ownership rights as recorded in the balance sheet of the corporate debtor, or with information utility or the depository of securities or any other registry that records the ownership of assets including - (i) assets over which the corporate debtor has ownership rights which may be located in a foreign country; (ii) assets that may or may not be in possession of the corporate debtor; (iii) tangible assets, whether movable or immovable; (iv) intangible assets including intellectual property; (v) securities including shares held in any subsidiary of the corporate debtor, financial instruments, insurance policies; (vi) assets subject to the determination of ownership by a court or authority; (g) to perform such other duties as may be specified by the Board. Explanation. - For the purposes of this [section], the term assets shall not include the following, namely: - (a) assets owned by a third party in possession of the corporate debtor held under trust or under contractual arrangements includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Application is disposed off as allowed. I have gone through the order of my Ld. Brother and I disagree with the decision that the RP would be allowed to take possession of the said shed for the following reasons-: a) Section 18(1)(f)(vi) provides that IRP is duty bound to take control and custody of assets subject to the determination of Court or Authority. The taking control of IRP here means only taking symbolic possession and not physical possession especially when the same is sub judice before a Civil Court. The IRP is not empowered to dispossess any person, hence in this case the Applicant cannot be dispossessed from the Shed even though the property belongs to the Corporate Debtor. IRP can take possession of the property only by due process of the law, by getting orders from the concerned civil court. b) Hon'ble Supreme Court in the case of Swiss Ribbon while upholding the Constitution validity of the code held that IRP/RP cannot decide the claim of the creditors and that being the position the request of the IRP to dispossess the applicant especially when a civil suit is pending, cannot be entertained by this tribunal and allowing of this application will r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e President, NCLT, New Delhi raising a legal question as to whether an IRP can dispossess any person in possession of a property owned by the Corporate Debtor when the said property is subject to litigation before a civil court. 21. The Corporate Insolvency Resolution Process (CIRP) was initiated against the Corporate Debtor by an order dated 11.12.2018 of this Adjudicating Authority on a section 10 Petition filed by the Corporate Applicant, Goa Auto Accessories Limited, wherein Mr. Suresh Saluja, was appointed as Insolvency Resolution Professional and thereafter confirmed by the Committee of Creditors (CoC) as Resolution Professional (RP). 22. The RP submits that the public announcement for inviting claims from Creditors was issued on 14.12.2018 (published on 17.12.2018). Pursuant to the said announcement, the Applicant received claims from 2 Secured Financial Creditors. The applicant duly verified the claims and subsequently admitted said claims. 23. In 2nd CoC meeting held on 25.02.2019, the Expression of Interest (EOI) and eligibility criteria for Potential Resolution Applicants (PRA) were finalised and the last date for submission was fixed by CoC. In response to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected to extend all co-operation to the Liquidator as required by him in managing the liquidation process of the Corporate Debtor. e. that the Liquidator will charge fees for conduct of the liquidation proceedings in proportion to the value of the liquidation estate assets as specified by the IBBI and the same shall be paid to the Liquidator from the proceeds of the liquidation estate under Section 53 of the Code. f. that on having liquidation process initiated, subject to section 52 of the Code, no suit or other legal proceeding shall be instituted by or against the Corporate Debtor save and except the liberty to the liquidator to institute suit or other legal proceeding on behalf of the corporate debtor with prior approval of this Adjudicating Authority. g. This liquidation order shall be a deemed to be notice of discharge to the officers, employees and workmen of the Corporate Debtor except to the extent of the business of the Corporate Debtor continued during the liquidation process by the Liquidator. 26. Accordingly, this Misc. Application is hereby allowed directing the Liquidator appointed in this case to initiate liquidation process as envisaged under Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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