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TMI Blog2019 (3) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... estion of priority or any question of law and facts arising out of or in relation to the insolvency resolution or liquidation proceedings of the Corporate Debtor or corporate person under the code - From sub-section (6) of Section 60 it is clear that after period of moratorium, a suit or application can be filed against the Corporate Debtor for which an order of moratorium has been made under the Part II and in such case, the period during which such moratorium is in place shall be excluded for the purpose of counting the limitation. In the present case the dispute relating to claim and counter claim as made by one or other parties, is brought to our notice by the Resolution Professional. The Resolution Professional while held that the material belongs to the Corporate Debtor, apart from the Appellants, other parties have also made claim that the same very material belongs to them. As the claim is not against the Corporate Debtor or its subsidiaries but includes inter-se claim for the same very material, such dispute cannot be decided by the Adjudicating Authority under Sub-section (5) of Section 60 of the I&B Code. It is only after completion of the period of moratorium and it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7/2018 was filed by 'M/s IU International Holdings PTE Ltd., Singapore' (Appellant in Company Appeal (AT) (Insolvency) No. 262 of 2018) which was filed through 'Uttam Sucrotech International Pvt. Ltd.' with following prayer:- "a. Direct the Corporate Debtor to hand over custody of the Materials as defined under Paragraph 4 of the Instant Application to the Applicant, b. Restrain the Insolvency Resolution Professional from alienating and/or creating any third-party interest in the Materials as defined under Paragraph 4 of the instant Application. c. Pass any other order, relief/reliefs, directions as deems fit for grant, in the interest of justice and equity." 4. In the said application also giving references to the same purchase order similar prayer was made and plea was taken that the steel plates were supplied to the Corporate Debtor for fabrication of the steam and mud drums. The said application has been also rejected by the Adjudicating Authority by another order dated 25th April, 2018 which is under challenge in Company Appeal (AT) (Insolvency) No. 262 of 2018. 5. Before deciding the issue it is desirable to notice the position of the parties as per counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2017. But the said letter has not been enclosed with the said email. It was further pleaded by the Resolution Professional that the Corporate Debtor's factories have no HT power for over a year and there are no workmen for production work as well, and in such circumstances, the question of Corporate Debtor doing any job work in May or October, 2017 does not arise. Further, according to the Resolution Professional the Managing Director is aware of materials at Corporate Debtor's site due to the information received from her father. Further plea taken by the Resolution Professional is that the raw material inventory of the Corporate Debtor is shown as ₹ 125 Crores. However, on physical inventory, it revealed less than 20% of the same, which is evidencing that the materials have been siphoned off from the premises of the Corporate Debtor under false documents. 9. The Adjudicating Authority has noticed the above, and taking into consideration all the facts and the letter written by the Executive Chairman of the Corporate Debtor to all the creditors as also the inventory of the Corporate Debtor, rejected the claim of the Appellant for releasing the material during the Resolutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e semi-finished goods from 'M/s G. B. Engineering Enterprises Ltd.' are of the Appellant Company, therefore, the title and possession of the goods which is stated to be delivered by 'M/s G. B. Engineering Enterprises Ltd.' to 'M/s Dynepro Pvt. Ltd.' belongs to them. 13. The Adjudicating Authority noticed that there is no proof placed on record to establish that the materials were delivered by the Appellant - 'M/s IU International Holdings PTE Ltd.' or by 'M/s Dynepro Pvt. Ltd.' to the Corporate Debtor under contractual arrangement including bailment and looking to the facts and circumstance of the case in hand thereby rejected the claim of the Appellant by order dated 25th April, 2018. 14. During the pendency of the case, the Resolution Professional was asked to make inspection in the presence of the Appellant. Different complains have been made by the Appellant against the Resolution Professional but we are not going to decide the same having no connection with the merit of this appeal. 15. Learned counsel appearing on behalf of the Appellant submits that the materials have been identified but the Resolution Professional after marking materials held that the material belongs to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... control and custody of any asset over which the corporate debtor has ownership rights as recorded in the balance sheet of the corporate debtor, or with information utility or the depository of securities or any other registry that records the ownership of assets including - (i) assets over which the corporate debtor has ownership rights which may be located in a foreign country; (ii) assets that may or may not be in possession of the corporate debtor; (iii) tangible assets, whether movable or immovable; (iv) intangible assets including intellectual property; (v) securities including shares held in any subsidiary of the corporate debtor, financial instruments, insurance policies; (vi) assets subject to the determination of ownership by a court or authority; (g) to perform such other duties as may be specified by the Board. Explanation. - For the purposes of this sub-section, the term "assets" shall not include the following, namely:- (a) assets owned by a third party in possession of the corporate debtor held under trust or under contractual arrangements including bailment; (b) assets of any Indian or foreign subsidiary of the corporate debtor; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under this Code. (6) Notwithstanding anything contained in the Limitation Act, 1963 or in any other law for the time being in force, in computing the period of limitation specified for any suit or application by or against a corporate debtor for which an order of moratorium has been made under this Part, the period during which such moratorium is in place shall be excluded. From sub-section (6) of Section 60 it is clear that after period of moratorium, a suit or application can be filed against the Corporate Debtor for which an order of moratorium has been made under the Part II and in such case, the period during which such moratorium is in place shall be excluded for the purpose of counting the limitation. 21. In the present case the dispute relating to claim and counter claim as made by one or other parties, is brought to our notice by the Resolution Professional. The Resolution Professional while held that the material belongs to the Corporate Debtor, apart from the Appellants, other parties have also made claim that the same very material belong ..... X X X X Extracts X X X X X X X X Extracts X X X X
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