2020 (1) TMI 1229 - Tri - Insolvency and Bankruptcy

Maintainability of application - the principal contention of RP Counsel is that this Bench has no jurisdiction to deal with the subject matter and this issue cannot be decided unless dues outstanding to the corporate Debtor are paid to it - HELD THAT - Since the RP himself entered into a supplemental agreement with the applicant for completion of the work by 30.11.2008 and that work has admittedly not been completed within the time mentioned subsequently also we are of the view that this bench has jurisdiction to deal with the issues transacted during the CIRP. Since it is a miscellaneous application the relief asked by the applicant not having any bearing over the rights of the other parties and the dues payable to each other and no public law being involved in between the parties we are of the view that we have jurisdiction to pass a limited order directing the RP to present at the time of taking final measurements - if a middleman is there at the time of taking measurements it will remain as proof to both the parties to the measurements therefore we direct CPWD Kerala to depute an officer (Engineer) of CPWD having expertise in construction at the time of taking final measurements at the cost of the applicant. The applicant shall inform the RP two weeks before taking the final measurements so as to enable him to attend. Application disposed off.

Summary

Issues:
Application under Section 60(5) of the Code seeking reliefs related to completion of a construction project, jurisdiction of the Bench to hear the application, reliance on a Supreme Court judgment for lack of jurisdiction, necessity of final measurements and reconciliation of work done by the corporate debtor, termination of agreement, involvement of CPWD in final measurements.

Analysis:
The case involves an application by NIT, seeking directions under Section 60(5) of the Code regarding a construction project. The applicant, a National Institute of Technology, entered into an agreement with the corporate debtor for a hostel project, which remains incomplete. Despite extensions and failed agreements, the applicant terminated the contract due to non-completion. The applicant seeks final measurements and reconciliation of work done to facilitate project completion without further delay. The RP's non-cooperation prompted the application, leading to jurisdictional disputes.

The RP argued lack of jurisdiction for the Bench to address the matter, citing a Supreme Court case. The Court's analysis of the cited case highlighted that Section 60(5) of the IBC does not extend to issues beyond the Code's purview. Drawing parallels, the Court emphasized that the corporate debtor cannot impede a third party's work, as sought by the applicant for measurement purposes, which does not affect dues or involve public law. The Bench asserted its jurisdiction over issues arising during CIRP, distinct from matters under other enactments.

The Court dismissed the RP's jurisdictional argument, noting the history of disputes between the parties, including failed arbitration due to RP's non-cooperation. Acknowledging the need for final measurements, the Court directed CPWD to provide an engineer for measurements, emphasizing proof for both parties. The order aimed to facilitate project completion without affecting parties' rights or dues, maintaining jurisdiction to issue limited directives for the RP's involvement in measurements.

In conclusion, the Court disposed of the application, emphasizing the need for final measurements to progress the construction project. The decision highlighted the Bench's jurisdiction over CIRP-related matters and the necessity of facilitating project completion through measured steps involving third-party expertise.