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TMI Blog2022 (1) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... rnet service of other service providers, did not emanate from any proceedings under the Insolvency Resolution Process and was outside the Insolvency Resolution Process. Although, the order of the District Magistrate dated 22nd August, 2020 is said to have been challenged by the Appellant before the Allahabad High Court by filing a Writ petition, but there is no material to indicate that operation of order dated 22nd August, 2020 of the District Magistrate has been stayed. The Adjudicating Authority by issuing the interim order dated 27.10.2020 had virtually stopped the implementation of order of the District Magistrate dated 22nd August, 2020, which was outside the jurisdiction of the Adjudicating Authority. Impugned order is set aside - Appeal is dismissed. - Company Appeal (AT) (Insolvency) No. 494 of 2021 - - - Dated:- 4-1-2022 - [Justice Ashok Bhushan] Chairperson , [Justice Jarat Kumar Jain) Member (Judicial) And [Dr. Alok Srivastava] Member (Technical) For the Appellant: Mr. Aditya Dewan and Mr. Sahil Chandra, Advocates For the Respondents: Mr. Vishal Gupta and Mr. Tenzen Tashi Negi, Advocates for R-1 JUDGMENT ASHOK BHUSHAN, J. This Appeal has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfection of Covid-19 and preventing the violation of the rights of consumers regarding Internet services: 1. The rights of any consumer for internet services will not be violated by any person/ institution/ company/ group housing etc. in the district i.e. no consumer will be forced to take a connection from a particular internet service provider. 2. In accordance with the provisions contained in The Competition Act 2002 (Amendment) Act 2007, all consumer will have the freedom to choose the Internet service provider as per his wish. 3. Strict penal action will be taken under the relevant provisions in the event of improper pressure being made by any person/ institution/ company / group housing etc. to select a particular Internet service provider company to a consumer for his own interest. 4. The said order will be effective with immediate effect. In case of violation of order, punitive action will be ensured under Section 51 of the National Disaster Response Act 2005 with the imprisonment for a term which may extend to one year or with fine, or with both, and if such obstruction or refusal to comply with directions results in loss of lives or imminent danger the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome in the days of Covid-19, since they cannot perform their work in proper manner without there being internet services. The Adjudicating Authority observed that Applicant had breached the terms of the agreement by not providing internet services to all the residents as agreed by him. The Application filed by the Appellant was dismissed with the liberty to Respondents to provide necessary services through some other agency. The Appellant aggrieved by the said order has filed the present Appeal. 3. Learned Counsel for the Appellant Shri Aditya Dewan submits that as per the Agreement with the Jaypee Infratech Limited and Jayprakash Associates Ltd., Appellant had right to provide internet services through its NANO Infrastructure. He further submits that NANO Infrastructure also allows various service providers to use the infrastructure to transmit voice, video data and any other open IP services to end-users through the term of the Agreement. The Appellant is not opposed to any other internet service provider to provide the services to the residents. Further, the NANO Network/ Infrastructure of the Appellant has to be used. It is submitted that Appellant being Liquidator of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has relied on exclusivity clause in the Agreement. The action of the Respondent to have conducted survey to enable other internet provider to provide internet services to the residents was objected to in the Application. The Adjudicating Authority on the submission of the Appellant has passed an interim order on 27.10.2020. The Adjudicating Authority in its order has noticed that District Magistrate order was stated to be a cause to avail parallel services by the Respondent. Consequently, the Adjudicating Authority directed that District Magistrate be impleaded as party. The interim order has restrained the Respondent from proceeding to have services from other networks, which order in effect was contrary to the order of the District Magistrate dated 22nd August, 2020, which permitted the residents to avail the network services from any other network service provider. 7. By the order impugned dated 5th July, 2021, the Application filed by the Appellant being IA No. 4052 of 2020 was dismissed, giving liberty to the Respondents to provide necessary services through some other agency. The impugned order dated 5th July, 2021 thus cleared the way for compliance of the order of the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Committee of Creditors had filed an Appeal before the Hon ble Supreme Court. In the above context, the Hon ble Supreme Court held that NCLT have no jurisdiction to adjudicate upon the dispute, which arose under MMDR Act, 1957 and following was laid down in paragraph 37, 41 and 43 37. From a combined reading of sub-section (4) and sub-section (2) of Section 60 with Section 179, it is clear that none of them hold the key to the question as to whether NCLT would have jurisdiction over a decision taken by the Government under the provisions of the MMDR Act, 1957 and the Rules issued thereunder. The only provision which can probably throw light on this question would be sub-section (5) of Section 60, as it speaks about the jurisdiction of the NCLT. Clause (c) of sub-section (5) of Section 60 is very broad in its sweep, in that it speaks about any question of law or fact, arising out of or in relation to insolvency resolution. But a decision taken by the Government or a statutory authority in relation to a matter which is in the realm of public law, cannot, by any stretch of imagination, be brought within the fold of the phrase arising out of or in relation to the insolvency re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. Therefore, the appeals are dismissed. There will be no order as to costs. 10. We may now refer to another judgment of Hon ble Supreme Court in Tata Consultancy Services vs. Vishal Ghisulal Jain, Resolution Professional, SK Wheels Private Limited in Civil Appeal No.3045 of 2020. The Hon ble Supreme Court in the said judgment again reiterated the same preposition, in paragraph 26 and 27 following was laid down: 26. In Gujarat Urja (supra), the contract in question was terminated by a third party based on an ipso facto clause, i.e., the fact of insolvency itself constituted an event of default. It was in that context, this Court held that the contractual dispute between the parties arose in relation to the insolvency of the corporate debtor and it was amenable to the jurisdiction of the NCLT under Section 60(5)(c). This Court observed that .NCLT has jurisdiction to adjudicate disputes, which arise solely from or which relate to the insolvency of the corporate debtor The nexus with the insolvency of the corporate debtor must exist (para 69). Thus, the residuary jurisdiction of the NCLT cannot be invoked if the termination of a contract is based on grounds unrelated t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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