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TMI Blog2020 (12) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... irtue of Section 238 of IBC 2016, the proceedings under IBC 2016, are having overriding effect over all the other inconsistent laws - Thus, this Bench is having the jurisdiction to entertain the applications filed by the Resolution Professional. As from the plain reading of Clause 6 of the Agreements dated 08.10.2018, it is evident that the Respondent was only having the temporary physical possession of the share certificates and other original documents. No ownership rights were transferred in favour of the Respondent at the time of signing the said agreements - The Respondent, who was given temporary physical possession of the original Share Certificates has not paid the consideration as stipulated in the Agreements dated 08.10.2018. Hence, this Bench is of the view that the Share Certificates along with other original documents possessed by both the Companies, namely, M/s. Hacienda Infosoftech Private Limited and M/s. Challengerz Web Solutions Private Limited, are assets of the Corporate Debtor and the Applicant is well within its rights to claim possession of these certificates along with other original documents with a view to maximize value of the assets of the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IRP). 6. It is submitted by the Applicant that the shares held by the Corporate Debtor in Hacienda Infosoftech Private limited and Challengerz Web Solutions Private Limited are assets of the Corporate Debtor. It is further added that the Original Share Certificates of the aforesaid Companies were handed over by the Corporate Debtor to Respondent in terms of the Clause 6 of the Agreement to Sell. The extract of the relevant clauses of the Agreements to Sell in respect to Hacienda Infosoftech Private limited on Page 4 and Challengerz Web Solutions Private Limited on Page 5 are reproduced overleaf : 7. It is submitted by the Applicant that as per the Clause 2 of the Agreements to Sell, the tenure of the said agreements was of only 11 months, which has already expired. It is further stated that in such a circumstance, the said agreements have become infructuous by efflux of time. 8. It is submitted by the Applicant that since the Respondent had failed to perform in terms of the said agreements, the Applicant had served two Notices of Termination each dated 16.01.2020, wherein 3 days' time was granted to comply in terms of the said agreement and to make the paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the statutory scheme as culled out from various provisions of the IBC, 2016 it is clear that wherever the corporate debtor has to exercise a right that falls outside the purview of the IBC, 2016 especially in the realm of the public law, they cannot, through the resolution professional, take a bypass and go before NCLT for the enforcement of such aright. 14. It is further submitted by the Respondent that the Applicant has not impleaded all the parties in the present applications, especially the one who were the signatories to the Agreements to Sell dated 08.10.2018 in the petitions of Oppression and Mismanagement. Therefore, it is contended by the Respondent that the Applications may be dismissed for non-joinder of the necessary parties. 15. It is further stated by the Respondent that the Corporate Debtor was required to take necessary approval from Noida and other authorities within 11 months, in terms of Clause 2 of the Agreements to Sell dated 08.10.2018 and on getting the approval, the consideration was required to be paid. 16. It is stated by the Respondent that since the Corporate Debtor failed to take necessary approval in terms of Clause 2 of the Agreement to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of CIR Process of the Corporate Debtor. Further as per Section 60(5)(a) of IBC 2016, this adjudicating authority can entertain or dispose of any application or proceeding by or against the Corporate Debtor. The provisions of the Section 60(5)(a) of IBC 2016 are reproduces below : Section 60(1)............................ (2)............................. (3)............................... (4)..................................... (5) Notwithstanding anything to the contrary contained in any other law for the time being in force, the National Company Law Tribunal shall have jurisdiction to entertain or dispose of- (a) any application or proceeding by or against the corporate debtor or corporate person; 23. Further, by virtue of Section 238 of IBC 2016, the proceedings under IBC 2016, are having overriding effect over all the other inconsistent laws. Therefore, in view of the above, this Bench is having the jurisdiction to entertain the applications filed by the Resolution Professional. The provisions of Section 238 of IBC, 2016 are reproduced below: 238. Provisions of this Code to override other laws: The provisions of this Code shall have e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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