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TMI Blog2022 (11) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... ides certain mode for execution of orders it is unnecessary to proceed under the different Act. In fact, it is ultra vires the IBC to invoke the provisions of the Companies Act, in the absence of any specific provision in the Code or Rules permitting such invocation. This application has been filed under Section 424 (3) of Companies Act, 2013. The said Section is not an enabling section to execute order, but only a section require to refer the Tribunals order for execution to the concern territorial limit Civil Courts. But Section 231 IBC,2016 ousted the Civil Court s jurisdiction in toto, hence this application cannot be proceeded under Section 424 (3) of the Companies Act,2013. The self contained IBC in Sec.35(2) empowers the liquid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Mr. Reetha D. Advs For the Respondent : Mr. Sankar P Panicker , Adv ORDER 1. This Petition is filed by the Liquidator as an Execution Application under Section 424 (3) of Companies Act, 2013 R/w Rule 56 of NCLT Rules, 2016. The brief background of the case necessary to dispose of this Application are as follows: 2. M/s. Archana Motors Private Limited, the CD, was on 10.01.2020 ordered to be liquidated by this Adjudicating Authority in M.A.No.38/ KOB/2020, and pursuant thereto appointed the Applicant herein as the Liquidator. The Respondents are erstwhile directors of the CD. During the liquidation process, it was discovered that certain fraudulent acts were committed by the Respondents, which consequently caused a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n neither is fatal nor prejudices the Respondents. 7. The Respondents argue that the third of them herein, who is aged and reputed, was a non-executive director and has not never taken active part in the management of the CD, and hence is irrelevant to decide this application. Besides, the properties without the boundaries have not been correctly described and further this Application, albeit filed in Form No.8 of NCLT Rules, 2016, the declaration therein is not in accordance therewith. Patently, the objections of the Respondents are only technical attempting to find fault with the procedural Law rather than the substantial Law. It is settled proposition a procedural law is only a handmaid to the substantive law. 8. The Applicant file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting Authority in accordance with rules 20, 21, 22, 23, 24 and 26 of Part III of the National Company Law Tribunal Rules, 2016. 11. The Applicant argued that he was constrained to invoke Companies Act, 2013, and Rule 56, since this Adjudicating Authority specifically directed him to do so in the earlier Application in M.A.(IBC) 07/KOB/2022 filed by him under Sec s.65 67, IBC to execute the order passed in I.A.(IBC) No.27/KOB/ 2021, and consequently dismissed it on 18.05.2022. The Respondents refute this by arguing that there is no such specific direction in the dismissal order. 12. However, the respective Counsel lost sight of the true spirit behind the observation in Para (15) thereof, extracted below, viz.: 15. In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pline Hospitality and Ex-Director Sh. T.S Murali has fraudulently recorded the same in his name, the property bearing Plot No. G-158, Sector-41, Noida, Uttar Pradesh-201302 is hereby attached. Warrants of attachment be affixed to the said property by the Liquidator, who shall take further steps for public auction of the same. The Respondents are directed to not to alienate, lease or create any kind of encumbrance or third-party interest in the property in question till the Order is fully complied. 15. In accordance with the Companies Act, only the ROC is furnished with a statement describing the properties of a company. The public are alerted not to deal with those properties only when the order of CIRP or Liquidation furnished to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of the schedule nos. (1) to (9) mentioned properties; 4) The Liquidator is directed to take custody and control of the schedule nos. (1) to (9) mentioned properties along with their respective title deeds following the due procedure in accordance with law and affix Warrants of attachment at conspicuous places in them; 5) In the event the schedule nos. (1) to (9) mentioned properties are tenanted, the Liquidator is directed to take their symbolic possession by proclaiming to the tenants/occupants following the due procedure in accordance with law, and 6) The liquidator is directed to sell the schedule nos. (1) to (9) mentioned properties in accordance with Regulation 33 in Schedule I to the IBBI (Liquidation Process) Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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