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TMI Blog2021 (6) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... ew 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indsay Street, Police Station New Market, Kolkata 700087, pitted against Mr. Anil Agarwal, the liquidator of the first respondent company. 2. The applicant's case 2.1. The applicant is a tenant in respect of a shop room at the ground floor of the premises bearing No. 15, Lindsay Street, Police Station New Market, Kolkata 700087; 2.2. The applicant had entered into a commission agreement with the corporate debtor on 13.11.2014 for a period of nine years, whereby the corporate debtor would utilise the premises for its leather business and shall pay the applicant as the commission agent, commission at 3% of the total sale on a monthly basis, subject to a minimum guaranteed return of ₹ 2.00 lakh. 2.3. The monthly commission as above was required to be paid within the 10th day of every month, in default of which the corporate debtor was liable to pay interest @12% per annum. 2.4. From April 2016 onwards, the corporate debtor starting defaulting in making payments to the applicant. Between April 2016 and February 2017, the corporate debtor made part payments of ₹ 8,10,000/-, leaving a total of ₹ 30,19,513/- upto November 2017 inclusive of interest, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mises to Vidhan Fashion for a sum of ₹ 20.00 lakh and that the corporate debtor is earning a whopping sum of ₹ 4.00 lakh per month from the said premises, despite having no right, title or interest in respect thereof. 2.11. The applicant had sent an email dated 26.08.2018 to the Respondent No. 2/ Liquidator, asking for refund of the amount collected from third party and also for giving back vacant and peaceful possession of the premises. However, the liquidator has not acted in accordance with the requests. 2.12. The applicant is not only entitled to the premises, but also to the sums collected from the third party. Additionally, it is also entitled to the minimum commission guarantee of ₹ 2.00 lakh per month in terms of the commission agreement dated 13.11.2014. 2.13. The applicant had filed CA (IB) No. 981/KB/2018 in CP (IB) 432/KB/2018, for an order directing the respondents to give back vacant and peaceful possession of the premises to the applicant. The annual accounts of the corporate debtor for the year 2014-15 would reveal that the said premises are not the asset of the corporate debtor. When the said application was taken up on 21.01.2019, the Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to refund the amount collected from Vidhan Fashions each and every month; (e) Order directing the respondents to pay commission fee to the applicant at the rate of 3% of the total sale on a monthly basis, subject to the minimum guarantee of ₹ 2.00 lakh under the commission agreement dated 13.11.2014, till the actual physical possession of the property is handed back to the applicant; (f) An order directing the respondents to give back vacant, peaceful and actual possession of the said premises to the applicant; (g) Direction on the liquidator for serving a copy of the application in CA (IB) No. 1415/KB/2019 filed by the liquidator, and an opportunity be given for filing a reply thereto. 3. The liquidator's reply 3.1. The liquidator has filed a reply, wherein he has questioned the maintainability of the application, which has been filed under section 333 of the Companies Act, 2013. The liquidator states that the application is filed on a mere apprehension, and that cannot be the basis for maintaining an application. He has also drawn attention to the order dated 27.03.2019 passed by the Hon'ble NCLAT, dismissing the appeals filed by the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission 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. Therefore, this prayer of the applicant for disclaimer of onerous covenants is hereby rejected. Prayer (b) 4.5. Prayer (b) is for an 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. 4.6. The CIRP has come to an end with the order dated 29.01.2019 ordering the liquidation of the corporate debtor. With this, the moratorium that kicked in with the order of admission dated 13.06.2018 has also run its course. Since the corporate debtor is in liquidation, the provision that now govern initiation or continuation of legal proceedings is section 33(5), which reads as follows:- (5) Subject to section 52, when a liquidation order has been passed, no suit or other legal proceeding shall be instituted by or against the corporate debtor: Provided t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 4.16. In view of this, prayer (f) has become infructuous. Prayer (g) 4.17. This is for a direction to the liquidator for service of a copy of the application being CA (IB) No. 1415/KB/2019 filed by the liquidator, and for an opportunity to be given to the applicant to file appropriate reply therein. 4.18. The liquidator is the applicant in that application, and therefore, the dominus litus. If at all the applicant feels that he is entitled to be heard, he ought to file an intervention petition in IA No. 1415/KB/2019. This prayer in the present application is, therefore, refused. 5. Orders 5.1. IA No. 1687/KB/2020 stands disposed of in accordance with the above directions. 5.2. The Registry is directed to send e-mail copies of the order forthwith to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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