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TMI Blog2022 (8) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... arify the provision which debars the applicability of Rule 11 to Sections 424 and 434 of the Companies Act, 2013 - the repeal of SICA shall not affect the order of BIFR and thus the order dated 30.06.2016 shall stand confirmed as on today. It is important to take a note that in this case where the case has been decided by the Board, the Tribunal is not bound to adhere to Rules 21 to 26 of NCLT Rules, 2016, which deals with the manner and procedure in which the petition or application is ought to be drafted and filed. The Respondent had earlier stated that they shall resume with their role as an operating agency once the case is filed before the NCLT. However, now the Respondent has challenged the jurisdiction of the NCLT to entertain this Petition, claiming that the civil courts have the jurisdiction to entertain the same, thereby contradicting their own statement. This shows that the Respondent is unnecessarily trying to delay the process and mislead the authorities. Respondent No. 1 are directed to transfer the right, title and interest in subject properties to the Petitioner after duly executing the Conveyance Deed, hand over all the documents showing the prior ownership r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner s favour. e. Pending the hearing and final disposal of the Petition, this Tribunal be pleased to pass an order and injunction restraining Respondent No. 1 from dealing with and/or creating any rights whatsoever (including parting with possession) over the subject properties. 2. The Respondent No. 1 and Respondent No. 2, are companies incorporated under the Companies Act, 1956 and Banking Regulation Act, 1949 having its registered office at 266, Dr. Annie Besant Road, Opposite Old Passport Office, Worli, Mumbai-400030 and 112, JC Road, Bangalore respectively. The property which is the subject matter of this Petition is also within this Tribunal s jurisdiction. Hence, this Tribunal has the jurisdiction to try and entertain the Petition. Submissions made by the Ld. Counsel of the Applicant: 3. It is the case of the Petitioner that Respondent No. 1 had been referred to the Board of Industrial and Financial Restructuring (hereinafter referred to as BIFR ), under the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as SICA ). 4. On 28.2.2006, by an order passed by the BIFR the Respondent No.1 had been decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uation conducted by ARCIL and the balance was to be shared by the secured creditors. A copy of Respondent No. 2 s letter dated 07.06.2013 is annexed as Exhibit I. 14. By an email dated 22.08.2013, the Petitioner forwarded to Respondent No.2, a draft of the sale/conveyance deed which the Respondents were to execute in the Petitioner s favor. 15. By an order dated 15.01.2014, the BIFR prima facie held that Respondent No.1 could not be revived, hence ordered that it be wound up and ordered the issuance of the show cause notice for this purpose. In paragraph 20.4 of the order dated 15.01.2014, the Respondent No.2 was directed to return the amount of ₹2.70 crores to the Petitioner. A copy of the order dated 15.01.2014 is annexed as Exhibit J. 16. The Petitioner did not accept the part of the Order dated 15.01.2014 which required Respondent No.2 to refund the amount of ₹2.70 crores, because based on the previous orders passed by the BIFR, the sale of the subject properties in the Petitioner s favour had already been accepted and confirmed and the Petitioner had paid the entire sum of ₹2.70 crores to Respondent No. 2. Therefore, the Petitioner instituted, Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mandated public auction under the SICA, it was only Respondent No.2 acting as Respondent No.1 s operating agency who had the power to authority to do so; it is Respondent No.2 who had conducted the auction and received the payment of Rs.2.70 crores; and even as per the order dated 30.06.2016, it is only Respondent No.2 who is required to execute the sale deeds in respect of the subject properties in the Petitioner s favour. 24. By a letter dated 15.09.2016, for the purpose of complying with the Orders passed in MA 42 of 2015, Respondent No.2 inter-alia called upon Respondent No.1 to inform it of a convenient date to execute the sale deeds in favour of the Petitioner conveying all right, title and interest in the subject properties. A copy of Respondent No. 2 s letter dated 15.09.2016 is annexed as Exhibit P. 25. On 01.12.2016, thereafter, the SICA Repeal Act was notified to come into force. With the passing of the SICA Repeal Act, all pending proceedings before the BIFR stood abated. According to the Petitioner, despite the SICA Repeal Act, the orders dated 30.06.2016 is still valid and binding as, in law and under the SICA Repeal Act, the same constitute actions under the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustrial and Financial Reconstruction (AAIFR) stands dissolved and any appeal preferred to the Appellate Authority or any reference made or inquiry pending before the Appellate Authority or any proceeding of whatever nature pending before the Appellate Authority or the Board under the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986) stands abated and the companies effected as a result of SICA Repeal Act may make reference to the National Company Law Tribunal ( NCLT ) under the Insolvency and Bankruptcy Code, 2016 within one hundred and eight days from the commencement of the IBC in accordance with the provisions of IBC. 30. It is pertinent to note that reference to NCLT can be made on account of SICA Repeal Act under the provisions of IBC and not Companies Act, 2013. 31. Further, the Petitioner cannot invoke the provisions of Rule 11 of the NCLT Rules, 2016 which gives the Tribunal inherent powers to make such order as may be necessary for meeting the ends of justice or to prevent abuse of the process of Tribunal. The said rule does not apply to the provisions of Section 424 and 434 of Companies Act, 2013 and therefore, no jurisdiction of this Tribunal aris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 36. Respondent No.2 states that neither the Section 424 nor Section 434 deals with any provision in relation to executing sale deeds in favour of a company. Hence, the ideal forum for the Petitioner Company, given the facts of the case would be a Civil Court and not NCLT and hence the Petitioner has no locus standi to file the present Company Petition. Further, Respondent No.2 states that in order to file petition before the Tribunal, the said Petition must comply and adhere to Rules 21 to 26 of NCLT Rules, 2016, which deals with the manner and procedure in which the petition or application is ought to be drafted and filed. 37. In the light of the above the Tribunal does not have the jurisdiction to entertain the petition of the Petitioner neither under Section 424 and 434 of Companies Act 2013 nor under the Rule 11 of the National Company Law Tribunal Rules, 2016. Findings: 38. We have heard the submissions of Applicant as well as the Respondent and perused the records. 39. We note that the SICA Repeal Act came into effect on 01.12.2016 and the Petitioner was bound to file the Petition within 180 days from the same. Thus, the Petitioner is well in time and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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