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TMI Blog2023 (5) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... eliefs sought by the Appellant. In the said Application prayer sought by the Appellant is reproduced below: "a. Allow the present application b. Direct the Respondent to vacate the premise E-1, E-2, E-3 Shiv Parvati Co-operative Housing Society Limited at plot no. 106-110 Sector-21, Nerul, Navi Mumbai. c. Direct the Respondent to co-operate with the Liquidator to show the said premise to the prospective investors. d. Pass any such order(s) that this Hon'ble Adjudicating Authority may deem fit in the interest of justice." 2. The facts giving rise to this Appeal are as follows: i) The Corporate Debtor is a company incorporated on 24.08.1987, under the provisions of companies Act, 1956. The Corporate Debtor itself filed an application under Section 10 of the Code for initiation of corporate insolvency resolution process ("CIRP") against the company, since it was unable to pay debts to its creditors. The Adjudicating Authority vide its order dated 15.02.2019 admitted their petition and initiated CIRP against the Corporate debtor and vide same order the Adjudicating Authority appointed Mr. Nilesh Sharma as the Interim Resolution Professional. ii) The Appellant was appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had given a security deposit of Rs. 7,75,440/- on 21.07.2005 to the Corporate Debtor. It is pertinent to mention that the Respondent was paying rent of the said premise @ Rs.1,90,080 from 01.08.2019 onwards (computed as 5% increase from monthly rent of Rs. 181,029/- payable till 31.07.2019). v) The Appellant again sent a reminder notice through email dated 10.12.2020 to the Respondent for vacating the said premises. It is pertinent to mention that despite notices being served and having knowledge about the liquidation of the Corporate Debtor, the Respondent did not vacate the said premise and is continuing to illegally hold the possession of the subject premise which is part of the liquidation estate of the Corporate Debtor till now. The Respondent contrary to the agreed monthly rental in term so the Board Resolution dated 26.12.2016 and Agreement dated 09.01.2017 paid 50 percent of the agreed rent from April, 2020 to June, 2020. It is pertinent to mention that the similarly for months July 2020 to Feb 2021 the Respondents have made payment of 75 percent of the agreed rent. The Respondents have not furnished any justification for the said reduction in the payment of the rent. vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to commencement of CIRP of the Corporate Debtor, the Corporate Debtor had entered into a Leave and License agreement dated 19.12.2015 with the Respondent Company for E-1, E-2, E-3 admeasuring 2872 Sq. Ft. of built-up area in Shiv Parvati Co-operative Housing Society Limited situated at Plot no. 106-110 Sector-21, Nerul, Navi Mumbai (hereinafter to be referred to as the 'said premises'). It is pertinent to mention that in terms of the agreement dated 19.12.2005, the Respondent made a security deposit of Rs. 7,75,440/-. Further, the parties had mutually agreed to extend the period of lease for a period of 33 months i.e. from 01.11.2016 till 31.07.2019 vide agreement dated 09.01.2017. The agreement came to an end on 31.07.2019. The Appellant had served notice on 24.09.2020, 16.11.2020 and 10.12.2020 upon the Respondent to vacate the premises. It is pertinent to mention that the Respondent was paying rent of the said premise @ Rs. 1,90,080 from 01.08.2019 onwards (computed as 5% increase from monthly rent of Rs. 181,029/- payable till 31.07.2019). The Respondent contrary to the agreed monthly rental in terms of the Board Resolution dated 26.12.2016 and Agreement dated 09.01.2017 paid 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of claims with property of the corporate debtor. It is pertinent to mention that only in wherever the corporate debtor has to exercise a right that falls outside the purview of through the resolution professional, take a bypass and go before NCLT for the enforcement of such a right. The Ld. Adjudicating Authority is provided with a specific jurisdiction, the Civil Courts have no jurisdiction in respect of matters under Section 43, 44, 45 & 48 of the Code, etc. When these provisions are read in conjunction with other provisions of the Code such as 18(f)(vi), 25(2)(b) and 35(1)(k) of the Code, the jurisdiction of the Adjudicating Authority does extend to subjects such as recovery of money, specific performance, eviction proceedings, etc. which were to be dealt with by Civil Courts only. 6. Further, Section 63 of the Code provides that no civil court or authority shall have jurisdiction to entertain any suit or proceedings in respect of any matter on which National Company Law Tribunal or the National Company Law Appellate Tribunal has jurisdiction under this Code. Therefore, as a suit for eviction can be brought through a civil court necessitates an interpretation that Section 60( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s expired shall be unduly prolonging the insolvency process which is a time bound process. When the Corporate Debtor has the ownership rights over the premises which premises can be taken in control by IRP/RP, we are of the view that for eviction of the Appellant especially in event when lease in favour of the Appellant has come to an end, filing a suit is not contemplated in the statutory scheme contained in IBC." 10. It is further submitted that the Respondent has paid 50% against net receivable lease rent from April 2020 to June 2020 and has paid 75% against net receivable lease rent from July 2020 to February 2023. Therefore, up till 28.02.2023, the total amount payable by the Respondent is Rs. 21,47,325/-. The same is calculated after adjusting the same with Security deposit at Rs. 7,32,301/-. Based on these submissions, the impugned order be set aside and the Appeal be allowed. 11. The Ld. Counsel for the Respondent in his Reply Affidavit along with written submissions submitted that issue involves in the present case is that jurisdiction of National Company Law Tribunal. The Civil Court has no bar in adjudicating dispute which does not fall within ambit of the Code:- a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings. This shows that wherever the corporate debtor has to exercise rights in judicial, quasi-judicial proceedings, the resolution Professional cannot short-circuit the same and bring a claim before NCLT taking advantage of Section 60(5). e) The applicability of the above-mentioned precedents to the instant matter at hand, that is, whether the above judgments dealing with the powers and duties of resolution professional could be applicable to liquidator. The Section 35(1)(k) of the IBC provides that, subject to the directions of the Adjudicating Authority, the liquidator shall have the power to institute or defend any suit, prosecution or other legal proceedings, civil or criminal, in the name of or on behalf of corporate debtor. Further, Section 63 of the IBC provides for 'Civil Court not to have jurisdiction' and Section 231 of the IBC provides for 'Bar of jurisdiction'. Therefore, when the Adjudicating Authority is provided with a specific jurisdiction under the IBC, the civil court has not jurisdiction in respect of those specific matters such as preferential transactions, undervalued transactions, etc. When the provisions of the IBC are read comprehensively, such as Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liquidator and thereby in corollary interpreted the limited scope of the Adjudicating Authority under the IBC. By reading the various provisions of the IBC comprehensively and in view of the legislative intent, the power to grant the relief of recovery of rent from tenant and the eviction of tenant from the property of the corporate debtor lies with the appropriate jurisdictional civil court. It is important to note that a Civil Court has jurisdiction by virtue of Section 9 of the Code of Civil Procedure, 1908 to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. However, the Adjudicating Authority under the IBC does not have jurisdiction to all suits since the various professionals working towards the resolution/liquidation of the corporate debtor have the power to approach other appropriate authorities for seeking reliefs. Therefore, the Adjudicating Authority can exercise only such powers within the contours of its jurisdiction, as prescribed by the statute, the law in respect of which, it is called upon to administer. j) The Hon'ble Supreme Court in the matter of Gujrat Urja Vikas Nigam Ltd. v. Amit Gupta & Ors. [(2021) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmissions made on behalf of the parties and perused the record. 15. Section 35 of IBC enumerated powers and duties of liquidator. Section 35(1) which is relevant for the present case is as follows: "35. Powers and duties of liquidator.- (1) Subject to the directions of the Adjudicating Authority, the liquidator shall have the following powers and duties, namely:- (a) to verify claims of all the creditors; (b) to take into his custody or control all the asserts, property, effects and actionable claims of the corporate debtor; (c) to evaluate the assets and property of the corporate debtor in the manner as may be specified by the Board and prepare a report; ....... (n) to apply to the Adjudicating Authority for such orders or directions as may be necessary for the liquidation of the corporate debtor and to report the progress of the liquidation process in a manner as may be specified by the Board; and (o) to perform such other functions as may be specified by the Board." 16. We need to peruse Section 60(5) of the IBC. The said section read as hereunder: "60(5). Notwithstanding anything to the contrary contained in any other law for the time being in force, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide order dated 10.02.2023. 20. In the present case also, Agreement was expired and further, Respondent is paying rent for the Tenanted Premises as per mutual understanding between the parties. The said internal communication email dated 31.07.2019 (at page 106 of the Appeal) of Corporate Debtor clearly stated that New Agreement will not be renewed and Corporate Debtor will raise invoice with 5% increase in monthly rent. Contrary to the above, the Tribunal noted the fact in the impugned order is of the dispute relating to title of the Corporate Debtor. Therefore, the Tribunal permitted the liquidator to file eviction suit in the proper Court. 21. Keeping in view the aforenoted facts and above discussions, we are of the view that the Adjudicating Authority has failed to notice the above judgment passed by three Member Bench of NCLAT which was upheld by Hon'ble Supreme Court. The three Member Bench of NCLAT judgment binding on us. In view of the fact, the impugned order dated 10.02.2021 passed by the Adjudicating Authority (National Company Law Tribunal, Ahmedabad Bench, Court 1) in IA/73(AHM)2021 in CP(IB) 37 of 2017 with IA/90(AHM)2021 is hereby set aside and the matter is rema ..... X X X X Extracts X X X X X X X X Extracts X X X X
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