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TMI Blog2022 (4) TMI 1478X X X X Extracts X X X X X X X X Extracts X X X X ..... he order of the NCLT impugned therein lacks clarity inasmuch as whether what is directed to be included in the liquidation estate is leasehold rights of the corporate debtor or the ownership rights of the petitioners or both. If the ownership rights of the petitioners are included in the liquidation estate that would be against Section 36 of IBC and that would give rise to a cause of action to the petitioners to invoke Article 226 of the Constitution of India, especially when the order is passed without hearing the petitioners. What is directed to be included in the Liquidation Estate, is the leasehold rights given to the Bank. Such leasehold rights can be included in the Liquidation Estate. The Tribunal passed the order after hearing the petitioners. In the facts and circumstances of the case, the judgments in Embassy Property Developments Private Limited [ 2019 (12) TMI 188 - SUPREME COURT] and Pushpa Shah [ 2019 (3) TMI 1688 - BOMBAY HIGH COURT] are of no assistance to the petitioner, fromwhere it can be inferred that when there is lack of jurisdiction in NCLT to include 3rd party's properties in Liquidation Assets, a writ petition under Article 226 is maintainable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose of including in the Liquidation Estate, both the Banks expressed their willingness to release the property. Thereupon, the Tribunal directed the Banks to handover physical possession of the mortgaged leasehold land of the corporate debtor, to the Liquidator in order to use as Liquidation Estate. 5. The petitioners thereupon approached this Court filing W.P.(C) No.3864/2021 and connected cases. This Court found that the Bank has security interests in the properties involved under two heads. The properties are held by the corporate debtor under a lease agreement which permits the corporate debtor to mortgage their leasehold rights for raising funds. Furthermore, the petitioners are sureties to the loan transactions of the corporate debtor and their title documents in respect of the properties are deposited with the Bank. This Court held that Liquidator can include the leasehold rights in the liquidation estate in view of Section 36(3) of the IBC. This Court doubted whether ownership rights of a property which are still with the petitioners, which stands mortgaged to the Bank can be included in the Liquidation Estate. After considering the facts of the case, this Court dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22. Moreover, since the Resolution Professional has to conclude the proceedings, it is highly necessary to get the possession of the property, as it is the duty of the Resolution Professional to dispose of the Liquidation Assets of the Corporate Debtor, if necessary, to settle the claims of all claimants including the Financial Creditors. Since, the Building/hospital is situated in the very same land having 16.55 Ares, no purpose would be served without getting the hospital property also into the Liquidation Assets. It is also noticed that the 1st Respondent Union Bank of India has no objection in handing over the possession and the 2nd Respondent Meenanchil East Urban Co-operative Bank Limited even though objected to; they have conditionally agreed to hand over possession, provided their interests is well secured. There is no doubt that the Liquidator will consider all the claims and make payments to each person/authority, as per the Regulations/Rules. Hence, the 2nd Respondent's apprehension cannot be sustained. 23. Hence, we affirm our order passed on 1st February, 2021 in MA/76/KOB/2020 and ordered as under: a. Both Respondents are directed to hand over the physical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dator filed a counter affidavit. The 3rd respondent stated that any person aggrieved by the order of the NCLT can prefer an appeal to the NCLAT. Since the petitioners have efficacious alternate remedy, the writ petition is not maintainable. The learned counsel for the 3rd respondent relied on a Division Bench judgment of this Court in Sulochana Gupta and others v. RBG Enterprises Private Limited and others [W.A. No.1083/2020) and a judgment in Ideal Surgicals v. National Company Law Tribunal and others (W.P.(C) No.8257 of 2021) to urge the point. 11. The alleged immovable properties being the assets of the personal guarantors which was mortgaged in favour of the financial creditors, the 3rd respondent being a Liquidator is bound to proceed against the properties. The Hon'ble Apex Court has repeatedly held that it is the duty of the RP/Liquidator to maximise the realisation value to the stakeholders of the corporate debtor either through revival or by selling the corporate debtor as a going concern. Major part of the Hospital and its utilities are constructed on the leasehold part of the land. Therefore, sale of land separately by the mortgage holders is not feasible. The wri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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