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TMI Blog2023 (1) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... n filed by the Insolvency Professional and Chairman of the Monitoring Committee of the Corporate Debtor seeking direction to the Appellant to vacate the premises belonging to the Corporate Debtor in his possession has been allowed. 2. The Appellant being aggrieved by the order impugned has come up in this Appeal. 3. Brief facts of the case for deciding this Appeal are:- i. On 26th March, 2021, Corporate Insolvency Resolution Process was initiated against the Corporate Debtor-Rajpal Abhikaran Pvt. Ltd. In the Resolution Proceeding, Information Memorandum was prepared by the Resolution Professional in which the asset which is the ground floor of the premises situated at Niranjanpur Dewas Naka, Indore was included in the assets of the Corporate Debtor. The premise that is ground floor of the building was let out to the Appellant by the Corporate Debtor by an unregistered lease deed on 01.11.2018 for a period of 11 months on a rent of Rs. 50,000/- per month. The Appellant was in possession of the premises prior to the initiation of CIRP as the lessee. Form-G was issued on 05.06.2021 in response to which two Resolution Plans were submitted including the Appellant as well as the Reso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the said property either directly or through any person. Resolution Professional has filed I.A. No. 200/2022 under Section 60(5) read with Section 74 of the Code, read with Regulation 38(9) of the CIRP Regulation, 2016 and Rule 11 of NCLT Rules for direction to remove the encroachment/trespass from the assets of the Corporate Debtor. vii. The Resolution Professional after stating the events which took place in the CIRP prayed that the period of lease of the Appellant has come to an end on 31st December, 2021 and thereafter Appellant has not vacated the premises even though it was stated in his Reply dated 29.12.2021 that within 10 days of the approval of the Resolution Plan he shall vacate the premises. The Application was listed before the Adjudicating Authority, it was pleaded by the Appellant that the Resolution Professional has earlier filed a suit for eviction and arrears of the rent which was withdrawn on 05.09.2022 hence it is open for the Resolution Professional to file suit to take possession from the Appellant. It is submitted that under MP Accommodation Control Act, 1961 for eviction of the tenant, proceedings has to be drawn before the appropriate forum and the Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid premises vacated from the possession of respondent no. 1." 4. Mr. Abhijeet Sinha, Learned Counsel for the Appellant challenging the Order dated 11.11.2022 submits that the Adjudicating Authority had no jurisdiction to entertain the Application seeking direction to the Appellant to vacate the premises. The Appellant had been continuing in the premises under lease deed granted by the Corporate Debtor from 01.11.2018 and for eviction of the Appellant, proceedings has to be initiated by the Resolution Professional under the MP Accommodation Control Act, 1961. It is submitted that the Adjudicating Authority has no jurisdiction to direct the Appellant to vacate from the premises. 5. Learned Counsel appearing for the Respondent refuting the submissions of Learned Counsel for the Appellant submits that the premises is owned by the Corporate Debtor and lease of the Appellant which was renewed by the resolution of the CoC was only till 31st December, 2021. The period of lease having come to an end on 31st December, 2021, the Appellant is not entitled to continue in the premises. The Adjudicating Authority has every jurisdiction to issue direction to the Appellant to vacate from the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate Debtor leased out the premises to the Appellant for a period of 11 months on 1st November, 2018 which was extended by another unregistered lease deed dated 1st September, 2020 for 11 months. The CIRP against the Corporate Debtor commenced on 26th March, 2021. The lease in favour of the appellant was coming to an end in August, 2021. The CoC in its 10th CoC Meeting held on 11.09.2021 approved renewal of rent agreement of Appellant till December, 2021. In pursuance of decision of 10th CoC meeting lease in favour of the Appellant was renewed by the RP by executing lease deed dated 15.09.2021 till 31st December, 2021. It is relevant to notice clause 2,11 and 18 of the Rent Agreement which is to the following effect: "2. Period of Agreement: this agreement made on 17.09.2021 to give effect from 01.08.2021, the period of Agreement is 5 months i.e. from 01.08.2021 till 31.12.2021. ..... 11. Vacating Property: That the property owner/court officer is Second party whenever asks first party to vacate premises the First Party shall vacate the property in the same condition in case of any kind of damage, the said damages shall will be compensated to the Second party immediatel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 18 of IBC enumerated duties of the IRP. Section 18(1) (f) which is relevant for the present case is as follows: "18(1). The interim resolution professional shall perform the following duties:- ...... (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 coporate debtor, financial instruments, insurance policies; (vi) assets subject to the determination of ownership by a court or authority;" 13. The above provision empowers the IRP to take control and custody of any asset over which the corporate debtor has ownership rights. When we look into the Section 18(1)(f)(ii), the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Code. We have noticed above that CoC has taken decision to issue Legal Notice to the Appellant to vacate from premises. 15. Learned Counsel for the Appellant has placed reliance on several judgments of the Hon'ble Supreme Court and this Tribunal which we need to notice. 16. Learned Counsel for the Appellant has relied on Judgment of the Hon'ble Supreme Court in [2020 13 SCC 308] "Embassy Property Developments Pvt Ltd. Vs. State of Karnatka & Ors.". In the above case, the Corporate Debtor was granted a mining lease by the State of Karnataka. Resolution Professional had filed a Writ Petition in the Karnataka High Court seeking declaration that mining lease should be deemed to be valid upto 31st March, 2020 in terms of the provisions of Section 8(a)(vi) of MMDR Act, 1997. State of Karnataka had during the pendency of the writ petition passed an order on 26.09.2018 rejecting the proposal for deemed extension. The writ petition was withdrawn by the RP however instead of filing writ petition, he had filed an application before the NCLT, Chennai praying for setting aside the order of the government. NCLT Chennai after some litigation again allowed the Application and set aside t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration proceedings." This shows that wherever the corporate debtor has to exercise rights in judicial, quasijudicial proceedings, the resolution professional cannot short- circuit the same and bring a claim before NCLT taking advantage of Section 60(5). 41. Therefore in the light of the statutory scheme as culled out from various provisions of the IBC, 2016 it is clear that wherever the corporate debtor has to exercise a right that falls outside the purview of the IBC, 2016 especially in the realm of the public law, they cannot, through the resolution professional, take a bypass and go before NCLT for the enforcement of such a right. 42. In fact the Resolution Professional in this case appears to have understood this legal position correctly, in the initial stages. This is why when the Government of Karnataka did not grant the benefit of deemed extension, even after the expiry of the lease on 25.05.2018, the Resolution Professional moved the High Court by way of a writ petition in WP No. 23075 of 2018. The prayer made in WP No. 23075 of 2018 was for a declaration that the mining lease should be deemed to be valid upto 31.03.2020. If NCLT was omnipotent, the Resolution Prof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted for 9 years with effect from 01st August, 2016, in reference to the facts of the said case, the Adjudicating Authority refused to approve the plan. Following observations were made in paragraph 64-66: "64. It is well settled that the Resolution Professional is required to examine and confirm the Resolution Plan subject to the same being in conformity with the ingredient of Section 30(2) of the Code. A Resolution Professional can submit his ex facie opinion to the 'Committee of Creditors' that the law was or was not violated. It is true that the Section 30(2)(e) of the Code does not authorise the Resolution Professional to determine whether the Resolution Plan does or does not violate the relevant provisions of Law. 65. In reality, ascribing conditions in the 'Resolution Plan' by the Appellant/Resolution Applicant is an unacceptable one, in the considered opinion of this Tribunal. Therefore, the Adjudicating Authority in the impugned order came to the right conclusion that the plan of the Resolution Applicant/Appellant was in negation of Law. 66. Insofar as, the eviction of 2nd Respondent is concerned, the Adjudicating Authority is not empowered to p ..... 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