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TMI Blog2022 (12) TMI 1202X X X X Extracts X X X X X X X X Extracts X X X X ..... diction and powers of NCLT. In Sub-Sections (4) and (5) of Section 60 of the IBC, 2016 give an indication respectively about the powers and jurisdiction of the NCLT. Sub- Section 4 of Section 60 of IBC, 2016 states that the NCLT will have the powers of DRT as contemplated under part III of the Code for the purpose of sub Section (2). Sub Section (2) deals with situation where the Insolvency Resolution or Liquidation of Bankruptcy of the corporate guarantor or personal guarantor of a Corporate Debtor is already pending before the NCLT - In the present case, the petitioner though had filed the civil suit praying for decree as well as the declaration with respect of the equity shares of the respondent and subsequently the petitioner has invoked the provisions of Section 7 of IBC which was duly admitted by the NCLT and the petitioner has filed the similar claim before the Liquidator. As per Section 238 of the IBC, 2016 is having override effect in any other law for the time being in force. In view of my prima facie findings that this Court cannot pass any interim order at this stage. This Court is of the view that the matter in issue in the suit can be more appropriately and effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as additional security against the loan of Rs. 10.20 crore along with the accrued interest. In the month of December, 2018, the petitioner has filed an application under Section 7 of Insolvency and Bankruptcy Code, 2016 before the Learned National Company Law Tribunal Kolkata for initiation of Corporate Insolvency Resolution Process against the respondent. On 18.09.2019, the NCLT has appointed an Insolvency Professional to take charge of affairs of the respondent as the Interim Resolution Professional. Due to the moratorium imposed by the order of NCLT dt. 18.09.2019, the petitioner could not proceed for lodging of writ of summons or taking other steps in the instant suit to enforce the security interest over the pledged shares. One of the suspended Directors of the respondent had preferred an appeal before the Learned National Company Law Appellate Tribunal, New Delhi against the order of the NCLT dt. 18.09.2019 wherein the said suspended Director submitted that he is ready to pay the total amount of the petitioner but subsequently vide e-mail dt. 20.10.2019, the suspended Director of the respondent had offered the petitioner to pay Rs. 11,06,15,268/- being the entire claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to allow the petitioner to sell the pledged shares towards the partial satisfaction of the claim of the petitioner against the respondent. As per the submission of the petitioner, the pledged shares and Tajpur land cannot be made part of the liquidation estate of the respondent and the Liquidator has wrongfully tried to take the properties from the petitioner. Counsel for the respondent Liquidator submits that the communication as relied by the petitioner is made by the suspended Director and not the Liquidator and thus the said communication cannot be treated as admission on the part of the respondent. Counsel for the respondent further submits that in terms of Clause 52 (5) of the IBC, 2016, the petitioner has to make an application to the adjudicating authority to facilitate the secured creditor to realize such security interest in accordance with law and thus the petitioner cannot claim any injunction before this Court during pendency of the Liquidation proceeding. Learned Counsel for the respondent Liquidator submits that the Liquidator vide communication dt. 06.06.2022 had informed the petitioner the entire claim amount of Rs. 14, 47,32,521/- is pending adjudicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orial jurisdiction over the place where the registered office of the corporate persons located. (2) Without prejudice to sub-section (1) and notwithstanding anything to the contrary contained in this Code, where a corporate insolvency resolution process or liquidation proceeding of a corporate debtor is pending before a National Company Law Tribunal, an application relating to the insolvency resolution or [liquidation or bankruptcy of a corporate guarantor or personal guarantor, as the case may be, of such corporate debtor] shall be filed before such National Company Law Tribunal. (3) An insolvency resolution process or [liquidation or bankruptcy proceeding of a corporate guarantor or personal guarantor, as the case may be, of the corporate debtor] pending in any court or tribunal shall stand transferred to the Adjudicating Authority dealing with insolvency resolution process or liquidation proceeding of such corporate debtor. (4) The National Company Law Tribunal shall be vested with all the powers of the Debt Recovery Tribunal as contemplated under Part III of this Code for the purpose of sub-section (2). (5) Notwithstanding anything to the contrary contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the proof of claim to the Liquidator wherein the petitioner has claimed the total liquidation amount of Rs. 14,47,32,521/- and the details of the security is mentioned as mentioned in para above. The judgment referred by the Counsel for the petitioner reported in (2020) 13 SCC 308 (Embassy Property Developments Pvt. Ltd. vs- State of Karnataka Ors.), the Hon ble Supreme Court held that the duties of the resolution professional are entirely different from the jurisdiction and power of NCLT. It is further held that if NCLT has conferred with jurisdiction to decide all types of claims to property of the Corporate Debtor, Section 18 (1) (f) (vi) would not have made the task of interim resolution professional in taking control in custody of an asset over which the Corporate Debtor has ownership rights, subject to the determination of ownership by a Court or other authority. The Hon ble Supreme Court further held that the statutory scheme as culled out from the various provisions of the IBC, 2016, it is clear that whenever the Corporate Debtor has to exercise a right that falls outside the purview of the IBC, 2016 specifically in the realm of the public law, they cannot, through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout specifically defining the power and functions of NCLT. Section 408 of the Companies Act states that the Central Government shall constitute a National Company Law Tribunal to exercise and discharge such powers and functions as are or may be conferred on it by or under the Companies Act or any other law for the time being in force. The matters fall within the jurisdiction of the NCLT, under the Companies Act, 2013 lie scattered all over the Companies Act, therefore, Section 420 and 424 of the Companies Act, 2013 indicates in brought terms, merely the procedure to be followed by the NCLT before passing any order. There is no separate provision in the Companies Act exclusively dealing with the jurisdiction and powers of NCLT. In Sub-Sections (4) and (5) of Section 60 of the IBC, 2016 give an indication respectively about the powers and jurisdiction of the NCLT. Sub- Section 4 of Section 60 of IBC, 2016 states that the NCLT will have the powers of DRT as contemplated under part III of the Code for the purpose of sub Section (2). Sub Section (2) deals with situation where the Insolvency Resolution or Liquidation of Bankruptcy of the corporate guarantor or personal guarantor of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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