TMI Blog2023 (5) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... /S. JHANVI RAJPAL AUTOMOTIVE PVT. LTD. VERSUS R.P. OF RAJPAL ABHIKARAN PVT. LTD. ANR. [ 2023 (2) TMI 1133 - SC ORDER ] and the Hon ble Supreme Court upheld the order passed by three Members Bench of this Tribunal. 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. 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 is binding. 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) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 33(1)(a) for liquidation of the Corporate Debtor since 330 days of the CIRP period was over and no resolution plan was approved. The Adjudicating Authority vide order dated 11.09.2020 passed an order for liquidation of the Corporate Debtor and appointed as the Liquidator. iii) Prior to the onset of CIRP, the Corporate Debtor and Universal Tutorial Private Limited Respondent herein had entered into a Leave and Licence agreement dated 19.12.2005 for premises 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, Nerula, Navi Mumbai. In terms of the agreement dated 19.12.2005, the Respondent made a security deposit of sum amounting to Rs. 7,75,440/-. Further, the parties mutually agreed to extend the period of the said leave and license. The Directors of the Respondent passed a resolution dated 26.12.2016 according approval for renewal of Leave and License Agreement between Corporate Debtor and Respondent, for a period of 33 months i.e. from 01.11.2016 till 31.07.2019. In pursuance of the afore-mentioned resolution dated 26.12.2016 executed a Leave and License Agreement dated 09.01.2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding from the Respondent on account of less fee paid to the Corporate Debtor as elucidated above. The said amount is due as per the General Ledger statement of Universal Tutorials held maintained by the corporate debtor. Despite receiving eviction notices dated 24.09.2020,16.11.2020, and 10.12.2020 the Respondent instead of vacating the premise is paying rent without any direction from the Liquidator in this regard. The outstanding receivable has been duly adjusted from the security deposit paid by the respondent and a net amount to the tune of Rs. 43, 139/- is payable to the respondent after vacating the said premise. Therefore, it is submitted that the Respondent can file a claim with the Liquidator for the said amount after vacating the premise. vii) The Appellant thereafter sent out two more eviction notices dated 16.11.2020, and 10.12.2020. However, to the utter dismay of the Appellant the respondent had not vacated the said premises which form part and parcel of the liquidation estate of the Corporate Debtor. Despite receiving several notices for vacating the said premise, did not respond to the said notices and continue to enjoy the possession over the said land without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Respondents have made payment of 75% of the agreed rent amount. The Respondent has not provided any justification for the same. Further, the timelines of events that took place is hereunder: Event Date Leave and License Agreement 19.02.2015 Modified Leave and License Agreement 09.01.2019 CIRP 15.02.2019 Leave and License Agreement came to an end 31.07.2019 Appellant appointed as the Resolution Professional 30.08.2019 Liquidation 11.09.2020 4. It is further submitted that the Respondent herein did not vacate the said premises irrespective of eviction notices being served upon them and continued to enjoy possession of the said premises without any authorization. Aggrieved by the same, the Appellant preferred an Application bearing IA No. 73 of 2021 before the NCLT seeking order against the Respondent to vacate the said premises. However, the NCLT vide order dated 10.02.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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(5)(c) providing for any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceeding confers required jurisdiction over NCLT to adjudicate disputes concerning the corporate debtor the relief for which lies in personam. 7. It is further submitted that in case the Appellant sells the said property while the Respondents are occupying the premise, the same would not fetch the fair value and in fact, would fetch far less price which it would otherwise be able to fetch in a sale. The unauthorized occupied flats are part of the Liquidation estate, and the proceeds received from the same would be for the benefit of all the creditors of the Corporate Debtor. The such retention of the possession and refusal of handing over of the premise owned by the Corporate Debtor is likely to affect all the creditors of the Corporate Debtor who is by the distribution of asset under Section 53 of the Code, is entitled to the proceeds out of the liquidation. 8. The NCLT, Mumbai Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves 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) The Appellant has taken plea that Section 63 of the Code restricts the Appellant to file eviction suit before Civil Court. However, Section 63 of the Code states that Civil Court will not have jurisdiction in matter which comes within the ambit of Adjudicating Authority. b) The present dispute is civil in nature and Adjudicating Authority has rightly observed and held that as far as the dispute relating to title of the Corporate Debtor, permitted the liquidator to file eviction suit in the proper Court. The Adjudicating Authority admitted this fact that it does not have jurisdiction to adjudicate the matter. Therefore, Section 63 of the Code will not bar the Appellant from filing eviction petition before appropriate court. c) The NCLT has in its judgment dated 27th October, 2020 in the matter of Asset Reconstruction Company (India) Limited v. Precision Fasteners Limited [C.P. (IB) No. 1339/NCLT/MB/2017 held that jurisdiction to grant reliefs of recovery of rent from tenant and the eviction of ten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction 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 18(f)(vi), Section 25(2)(b) and Section 35(1)(K), it can be inferred that the jurisdiction of the Adjudicating Authority does not extend to subjects such as recovery of money, specific performance, eviction proceedings, etc. which were to be dealt with by civil court only. f) Further, in pursuance of the scheme of the Code, the NCLT has given the necessary permission to the liquidator to proceed and to take action and yet the Liquidator has not taken any steps. Thereby indicating that the claim and the sought-after objective of the liquidator is not serious and not necessary for the Corporate Debtor. The judgment of this Tribunal upholding the rejection of resolution plan in the matter of K.L. Jute Products Private Limited v Tirupti Jute Industries Limited and Others [ Company Appeal (AT) (Ins.) No. 277 of 2019]. The relevant portion is as follows: Insofar as, the eviction of 2nd Respondent is concerned, the Adjudicating Authority is not empowered to pass an order of eviction and it is for an Aggr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 7 SCC 209] and Tata Consultancy Services Ltd. v. SK Wheels Pvt. Ltd. [(2022) 2 SCC 583], matter has already considered the scope of Section 60(5) and concluded that the Hon ble Tribunal has jurisdiction to adjudicate disputed, which arise solely form or which related to the insolvency of Corporate Debtor only. It is further submitted that purview of Insolvency is limited to the provisions of the Code. 12. It is further submitted that New Agreement was executed by mutual understanding between Corporate Debtor and Respondent: a) The Respondent show his interest to continue tenancy in the Tenanted Premises, therefore, approached Corporate Debtor to extend the New Agreement. After discussion between the parties, New Agreement was extended wherein it was decided between the parties that no formal renewal is required. It was further decided that rent will be increased by 5% as stipulated in New Agreement. The internal communication of Corporate Debtor to extend New Agreement. The said internal commun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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, the National Company Law Tribunal shall have jurisdiction to entertain or dispose of (a) any application or proceeding by or against the corporate debtor or corporate person; (b) any claim made by or against the corporate debtor or corporate person, including claims 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 debtor or corporate person under this code. 17. Hon ble Supreme Court in Arcelor Mittal India Private Limited v Satish Kumar Gupta (2019) 2 SCC 1 wherein it is held that: 83. The non-obstante Clause in Section 60(5) is designed for a different purpose: to ensure that the NCLT alone has jurisdiction when it comes to applications and proceedings by or against a corporate debtor covered by the Code, making it clear that no other forum has jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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