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TMI Blog2022 (2) TMI 1474X X X X Extracts X X X X X X X X Extracts X X X X ..... cts leading to this appeal are as follows: That the Corporate Debtor, M/s. Maximum Agency Private Ltd., owed property taxes to the KMC. For satisfying its outstandings of property tax, KMC acted under its statute which is the KMC Act, 1980 in the year 2015 attaching the sole immovable property of the Corporate Debtor. However, no further steps were taken by KMC to act on the attachment by way of auctioning the said immovable property for the purpose of monetizing its outstandings of property tax. In such a situation, the Respondent No.3/ Axis Bank, being a secured creditor of the Corporate Debtor, instituted proceedings under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for short the IBC Code). The proceedings under Section 7 of the IBC Code were instituted in the year 2019 before the NCLT, Kolkata Bench including the sole immovable asset of the Corporate Debtor, now under order of attachment by the KMC. It is a matter of record that KMC added itself in the proceedings before the NCLT, Kolkata Bench for recovery of its outstanding property tax dues qua the Corporate Debtor. However, the RP applied before the NCLT for valuation of the immovable property of the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tute, viz. the KMC Act, 1980. The KMC therefore acquires the first right to deal with the said immovable asset under its own special statute for realization of its dues. The IBC proceedings must therefore yield to the special statute, viz. the KMC Act. Learned Senior Counsel submits that since the NCLT, Kolkata Bench does not possess the jurisdiction to adjudicate under the KMC Act, 1980, the Order impugned dated 17th December 2019 is in excess of jurisdiction, alternately, in exercise of a jurisdiction which does not exist. Both the above situations create the legal position that where jurisdiction has been exercised by an inferior Tribunal or an authority which does not exist or inheres in such Tribunal or authority, the relief can be applied for by invoking the writ jurisdiction of the Hon'ble Court. Learned Senior Counsel for the appellants points out that such has been underscored by the Hon'ble Single Bench at Paragraph -38 (supra). Replying to the both arguments of the appellants by relying on a catena of judicial authorities, Learned Counsel for the Respondents submit that the IBC proceedings are independent and have overriding effect. Having regard to the clear and wide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out any case that steps have already been taken under the order of attachment qua the said immovable asset of the Corporate Debtor and, such steps have reached an irreversible or irretrievable stage which would warrant that the NCLT should stay its hands. It is pointed out that nothing has been brought on record by the appellants disclosing that the KMC has proceeded under the order of attachment resulting in an irreversible and irretrievable situation whereby the RP must desist from exercising any authority over the same. It will be now relevant to quote Paragraphs 24 and 26 of In Re: A. Navinchandra Steels (supra) which read as follows: "24. In Action Ispat , this Court was faced with a proceeding in which a winding up petition had been admitted by the High Court and then transferred to the NCLT to be tried as a proceeding under the IBC. After referring to the judgments in Jaipur Metals (supra), Forech (supra), and Kaledonia (supra), and after setting out various Sections dealing with winding up of companies under the Companies Act, 2013, this Court then held: "14. What becomes clear upon a reading of the three judgments of this Court is the following: 14.1. So far as tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar as may be necessary, for the beneficial winding up of the company, and may even sell the company as a going concern. So long as no actual sales of the immovable or movable properties have taken place, nothing irreversible is done which would warrant a Company Court staying its hands on a transfer application made to it by a creditor or any party to the proceedings. It is only where the winding up proceedings have reached a stage where it would be irreversible, making it impossible to set the clock back that the Company Court must proceed with the winding up, instead of transferring the proceedings to the NCLT to now be decided in accordance with the provisions of the Code. Whether this stage is reached would depend upon the facts and circumstances of each case. 26. On facts also, in the present case, nothing can be said to have become irretrievable in the sense mentioned in paragraph 31 of Action Ispat. " Having heard the parties and considering the materials placed, this Court finds no reason to agree with the stand taken by the appellants/ the KMC. Apropo the first proposition advanced on behalf of the appellants that the Hon'ble Single Bench had observed on the want or lac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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