TMI Blog2022 (9) TMI 1295X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the Appellant is that Adjudicating Authority has no jurisdiction to entertain the Application - The Leave and License Agreement under which the Appellant is occupying the assets could not have been cancelled by the Adjudicating Authority, nor the Leave and License could be disregarded by the Adjudicating Authority by directing the Resolution Professional to take possession of the assets. Whether the Appellant has any right to resist for taking possession of the assets by the IRP? - HELD THAT:- The Leave and License Agreement was executed without any consideration. Clause 2 of the Leave and License Agreement clearly contemplated that Licensor shall not charge any License Fee from the Licensee, for grant of Leave and License of the said premises. Section 25 of the Contract Act, 1872 provides that Agreement without consideration are void, unless it is in writing and registered - The present is a case where Leave and License Agreement was executed without any consideration and the document, which has been relied by the Appellant is an unregistered document. Thus, it is not saved by exception as carved out in Section 25, sub-section (1). The document is a void document, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Rishav Banerjee, learned Counsel for the Respondent. 4. The Authorised Representative of the Appellant, challenging the impugned order submitted that the Adjudicating Authority has no jurisdiction to pass the impugned order. It is submitted that the Adjudicating Authority cannot function as a Civil Court. The Application filed by the IRP before the Adjudicating Authority was not maintainable. The impugned order is unreasoned order without giving an opportunity to the Appellant. The Appellant is in possession of immovable property in pursuance of Leave and License Agreement dated 30.12.2019 executed by the Corporate Debtor. The Appellant had earlier obtained Agreement to Sell dated 20.08.2019 for land measuring 8 Bigha 02 Biswas land situated at Tehsil Baddi, District-Salon, Himachal Pradesh. An amount of Rs.5,00,000/- was paid as earnest money. Agreement contemplated that physical possession shall be handed over to the purchaser at the time of execution and registration of Sale Deed. Further, the Appellant has made payment of an amount of Rs.17.95 lakhs to the vendors of the Corporate Debtor. It is further noticed that the Licensor failed to obtain No Objection Certificate ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the parties that the Licensor shall not charge any License Fee from the Licensee, for grant of Leave License said Licensed Premises. 8. The Leave and Licensee Agreement is thus admittedly without any consideration. Section 18 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the IBC ) enumerates the duties of the IRP. Section 18, sub-section (1), sub-clause (f) provides: 18(1)(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 ownersh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er on 03.05.2019 allowing the Application. A Writ Petition was again filed in the High Court in which an interim order was passed, staying the order of NCLT, which was challenged before the Hon ble Supreme Court. In the above background Hon ble Supreme Court in the above case held that the Adjudicating Authority had no jurisdiction to pass the impugned direction. In paragraph 46, the Hon ble Supreme Court recorded its conclusion in following words: 46. Therefore, in fine, our answer to the first question would be that NCLT did not have jurisdiction to entertain an application against the Government of Karnataka for a direction to execute supplemental lease deeds for the extension of the mining lease. Since NCLT chose to exercise a jurisdiction not vested in it in law, the High Court of Karnataka was justified in entertaining the writ petition, on the basis that NCLT was coram non judice. 11. The judgment of the Embassy Property Developments Private Limited (supra) has no application in the facts of the present case. In the preset case, the only direction issued by the NCLT is that Appellant to handover the possession of the property to the RP within two weeks of the asset ..... X X X X Extracts X X X X X X X X Extracts X X X X
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