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2021 (3) TMI 430 - HC - Insolvency and BankruptcyHanding over physical possession of the office premises - Recovery of municipal tax dues from assessee - scope of subject matter under IBC - Whether the writ jurisdiction of this court under Article 226 of the Constitution of India can be invoked in the matter, despite the availability of an alternative remedy? - HELD THAT - The nature of challenge thrown in the writ petition is on the ground of absence of jurisdiction and not wrongful exercise of the available jurisdiction , thus bringing it within the fold of Article 226 of the Constitution. In such a scenario, the present writ petition is maintainable - although a wrongful exercise of available jurisdiction would not be sufficient to invoke the High Court s jurisdiction under Article 226 of the Constitution, the ground of absence of jurisdiction could trigger such invocation. Hence, in view of the nature of challenge involved in the present writ petition, the same is maintainable in law. Whether the property-in-question, having been seized by the KMC in recovery of its statutory claims against the debtor, can be the subject-matter of a Corporate Resolution Process under the Insolvency and Bankruptcy Code, 2016? - HELD THAT - In the present case, the Corporation followed such procedure and took possession of the disputed property for non-payment of tax. Thus, there was no further scope for any determination of ownership of the property by the KMC. As such, there arose no question of the task of the interim resolution professional, in taking control and custody of the asset, being subject to the determination of ownership by any authority, as contemplated under Section 18(f)(vi) of the IBC. Rather, the claim of the KMC, in the absence of any successful challenge thereto, attained finality, fastening a liability upon the corporate debtor - the finalized claim of the KMC can very well be the subject-matter of a Corporate Resolution Process under the IBC. Both the issue answered in the affirmative and against the writ petitioner.
Issues Involved:
1. Whether the writ jurisdiction of the High Court under Article 226 of the Constitution of India can be invoked despite the availability of an alternative remedy. 2. Whether the property seized by the Kolkata Municipal Corporation (KMC) in recovery of its statutory claims against the debtor can be the subject matter of a Corporate Insolvency Resolution Process (CIRP) under the Insolvency and Bankruptcy Code, 2016 (IBC). Detailed Analysis: Issue 1: Writ Jurisdiction under Article 226 The High Court examined whether it could exercise its writ jurisdiction under Article 226 despite the availability of an alternative remedy. The petitioner argued that the NCLT and the Resolution Professional lacked jurisdiction to take control and custody of the asset, which was under the statutory authority of the KMC. The court referred to the Supreme Court's decision in Embassy Property Developments Pvt. Ltd. vs. State of Karnataka, which distinguished between a lack of jurisdiction and wrongful exercise of available jurisdiction. The High Court concluded that the challenge was based on the absence of jurisdiction, making the writ petition maintainable under Article 226. The court cited Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Commissioner of Income Tax vs. Chhabil Dass Agarwal to support its decision that the writ petition was maintainable in cases of jurisdictional absence, thereby deciding this issue in the affirmative. Issue 2: Subject Matter of CIRP under IBC The second issue addressed whether the property seized by the KMC could be included in the CIRP under the IBC. The court referred to Embassy Property Developments Pvt. Ltd. vs. State of Karnataka, which clarified that decisions by statutory authorities in the realm of public law are not within the scope of "arising out of or in relation to the insolvency resolution" under Section 60(5)(c) of the IBC. The court noted that once the KMC's claim for unpaid taxes had attained finality, it became an "operational debt" under Section 5(21) of the IBC. Therefore, the Resolution Professional had jurisdiction to take custody and control of the asset. The court also cited Commissioner of Income Tax vs. Monnet Ispat and Energy Ltd., which held that crown debts do not take precedence over secured creditors under the IBC. Consequently, the court decided that the finalized claim of the KMC could indeed be the subject matter of a CIRP, answering this issue in the affirmative and against the writ petitioner. Conclusion The High Court dismissed the writ petition, affirming that: 1. The writ jurisdiction under Article 226 was maintainable due to the absence of jurisdiction by the NCLT. 2. The property seized by the KMC could be included in the CIRP under the IBC, as the KMC's claim had attained finality and was considered an operational debt. The petition was dismissed without any order as to costs, and the court ordered that urgent certified copies of the judgment be supplied to the parties upon compliance with requisite formalities.
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