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2021 (6) TMI 937 - Tri - Insolvency and BankruptcyMaintainability of application filed u/s 333 of the Companies Act, 2013 - Applicant claiming tenancy of a shop room at the ground floor of the premises - disclaimer of the premises at No. 15, Lindsay Street, Police Station-New Market, Kolkata 700087 in favour of the applicant - HELD THAT - This is ostensibly on the ground that onerous covenants supposedly are attached to the property. We are not required to go into the veracity of the commission agreement dated 13.11.2014. However, even from a bare reading of the commission agreement of 13.11.2014, which is the basis of such claim, there is nothing that can be attributed to the property itself, even if the commission agreement is taken at face value. It only casts a burden on the corporate debtor to make payments- that too if the commission agreement is otherwise sustainable in law - the prayer of the applicant for disclaimer of onerous covenants is hereby rejected. Seeking order declaring that the premises at No. 15, Lindsay Street, Police Station-New Market, Kolkata 700087, is outside the scope of moratorium of the corporate debtor - HELD THAT - While section 14 of the Insolvency Bankruptcy Code, 2016, is a broad-spectrum moratorium prohibiting all kinds of action against the corporate debtor, section 33(5) confines itself only to initiation of legal proceedings by or against the corporate debtor. The proviso to section 33(5) makes it clear that the liquidator may institute a suit or legal proceeding for and on behalf of the corporate debtor, after obtaining the prior approval of the Adjudicating Authority. There is no bar engrafted into section 33(5) which prohibits continuation of any pending suits or legal proceedings - In the present case, since the applicant has also instituted civil proceedings for various reliefs both in the Hon'ble Calcutta High Court as well as in the city civil court, there is no need for this Adjudicating Authority - this point was rejected. Disbursement of claim admitted by the liquidator - HELD THAT - This is not permissible until the liquidator process itself comes to an end. Therefore, this prayer is rejected. Seeking direction to respondents to refund the amount collected from Vidhan Fashions on each and every month - HELD THAT - This prayer cannot be granted without determining the issue of ownership and possession of the property. Since that issue is sub judice before the Hon'ble Calcutta High Court and the city civil court, this prayer is rejected. Seeking direction to respondents to pay commission fee to the applicant - HELD THAT - Since the claim of the applicant has already been adjudicated and admitted in full, all that is required to be done at this stage is to sit back and wait for the liquidation process to be completed, at the end of which disbursement will take place in accordance with law. Therefore, this prayer is rejected as premature at this stage. Seeking order directing the respondents to give back vacant peaceful and actual khas possession of the said premises - HELD THAT - This Adjudicating Authority had considered application bearing IA No. 138/2021, in which an order dated 12.04.2021 was passed. It was directed that in view of contesting claims made regarding ownership and possession, the liquidator shall hand over physical possession of the premises to the person from whom the corporate debtor took possession, since the corporate debtor was not the owner of the premises. Accordingly, the liquidator has since handed over possession to Mr. Anil Arora, the applicant herein - Prayer has become infructuous. Seeking direction to the liquidator for service of a copy of the application filed by the liquidator, and for an opportunity to be given to the applicant to file appropriate reply therein - HELD THAT - The liquidator is the applicant in that application, and therefore, the dominus litus - This prayer in the present application is, therefore, refused. Application disposed off.
Issues Involved:
1. Order of disclaimer of the premises. 2. Declaration that the premises are outside the scope of moratorium. 3. Disbursement of claim admitted by the liquidator. 4. Refund of the amount collected from Vidhan Fashions. 5. Payment of commission fee as per agreement. 6. Return of vacant and peaceful possession of the premises. 7. Service of application copy filed by the liquidator and opportunity to reply. Issue-wise Detailed Analysis: 1. Order of Disclaimer of the Premises: The applicant sought an order of disclaimer of the premises at No. 15, Lindsay Street, Kolkata, arguing that the property is burdened with onerous covenants. The tribunal rejected this prayer, stating that the commission agreement dated 13.11.2014, even if taken at face value, does not attribute any onerous covenants to the property itself. The agreement merely imposes a payment obligation on the corporate debtor, which is not sufficient grounds for a disclaimer. 2. Declaration that the Premises are Outside the Scope of Moratorium: The applicant requested a declaration that the premises are outside the scope of the moratorium. The tribunal noted that the moratorium ended with the order of liquidation dated 29.01.2019. The applicable provision now is section 33(5) of the Insolvency & Bankruptcy Code, 2016, which governs the initiation or continuation of legal proceedings. Since the applicant has already initiated civil proceedings in other courts, there was no need for this adjudicating authority to grant this prayer, and it was rejected. 3. Disbursement of Claim Admitted by the Liquidator: The applicant sought disbursement of the claim amounting to ?67,07,118 admitted by the liquidator. The tribunal rejected this prayer, stating that disbursement is not permissible until the liquidation process concludes. 4. Refund of the Amount Collected from Vidhan Fashions: The applicant requested a refund of the amount collected from Vidhan Fashions. The tribunal rejected this prayer, noting that the issue of ownership and possession of the property is still sub judice before the Hon'ble Calcutta High Court and the city civil court. 5. Payment of Commission Fee as per Agreement: The applicant sought an order directing the respondents to pay the commission fee as per the agreement dated 13.11.2014. The tribunal rejected this prayer as premature, noting that the applicant's claim has already been adjudicated and admitted in full. The applicant must wait for the liquidation process to complete for disbursement. 6. Return of Vacant and Peaceful Possession of the Premises: The applicant requested the return of vacant and peaceful possession of the premises. The tribunal noted that an order dated 12.04.2021 had already directed the liquidator to hand over possession to the person from whom the corporate debtor took possession. Consequently, the liquidator handed over possession to the applicant, making this prayer infructuous. 7. Service of Application Copy Filed by the Liquidator and Opportunity to Reply: The applicant sought a direction for the liquidator to serve a copy of the application CA (IB) No. 1415/KB/2019 and an opportunity to reply. The tribunal refused this prayer, stating that the applicant should file an intervention petition in the relevant application if they feel entitled to be heard. Orders: The tribunal disposed of IA No. 1687/KB/2020 in accordance with the above directions and directed the registry to send e-mail copies of the order to all parties and their counsel. A certified copy of the order may be issued upon compliance with requisite formalities.
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