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TMI Blog2024 (3) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... the possession of the property in question to the RP (now Liquidator) within 15 days from the passing of the order and the Statutory Authorities i.e. Local Police, is also directed to provide assistance to the Applicant in the application, in case, the vacant possession of the property in question is not handed over by the Appellant herein within the prescribed time period. 2. The Corporate Insolvency Resolution Process (in short 'CIRP') against the Corporate Debtor was initiated vide order dated 06.12.2019 on an application filed by an Operational Creditor. I.A. No. 937 of 2020 was filed by the RP alleging that the entire first floor, having covered area of 945 sq. ft. without roof rights/terrace rights (Property No. 1) and 3rd floor consisting of one room (Property No. 2) at commercial shop plot no. 363, 364, 365, Btype, situated at Nehru Ground, NIT, Faridabad is the property of the corporate debtor in view of sale deed dated 03.09.2014. However, the Applicant/RP came across an agreement to sell dated 31.03.2018 in respect of entire first floor, having its covered area 945 sq. without roof/terrace rights, construction on commercial shop plot no. 363, 364, 365, situated at Nehr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is protected under Section 53A of the Transfer of Property Act, 1882 (the Act, 1882) and that the Adjudicating Authority had no jurisdiction to decide the lis between the parties as it is beyond its jurisdiction. In this regard, he has referred to the decisions of the Hon'ble Supreme Court in the cases of Tata Consultancy Service Limited Vs. Vishal Ghisulal Jain, RP, SK Wheels Pvt. Ltd., 2021 SCC Online SC 1113, Gujarat Urja Vikas Nigam Limited Vs. Amit Gupta & Ors., 2021 SCC Online SC 194, Embassy Property Developments Pvt. Ltd. Vs. State of Karnataka & Ors, 2019 SCC Online SC 1542 and a decision of this Tribunal in the case of Sicom Ltd. & Anr. Vs. Kitply Industries Ltd. & Ors., CA (AT) (Ins) No. 849 of 2021. It is further submitted that the Liquidator has also erred in not taking into consideration the transaction of Rs. 7,00,000/- made through RTGS and accepted the claim of the Appellant to the tune of Rs. 18 lakh only. 6. In sum and substance, the argument of the Appellant is that because of the agreement to sell, the Appellant was either entitled to refund double of the earned money in view of Clause 7 of the said agreement or he is entitled to seek specific performance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement dated 14.09.2018, the said agreement to sell stood terminated even before the CIRP was initiated on 06.12.2019. It is further submitted by the Respondent that there is no error in the impugned order by which the Appellant has been asked to vacate the property in question which is in his illegal possession. It is also submitted that the Respondent could not take possession because the order of stay was passed by this Tribunal despite the fact that the appeal is barred by limitation for which the Appellant has filed an application bearing I.A. No. 2965 of 2023 for condonation of delay in filing the appeal and the same was not pressed at the time of issuance of notice in appeal and the grant of stay. 9. We have heard Counsel for the parties and perused the record with their able assistance. 10. The whole case is based upon the agreement to sell dated 31.03.2018. According to the said agreement, the deal was struck for sum of Rs. 75 Lakh out of which the Appellant is stated to have paid Rs. 8 Lakh in cash and Rs. 7 Lakh through RTGS. It was also provided in Clause 7 of the said agreement that 'in case the said seller backs out from the bargain and fails to complete all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire amount and in case he does not pay then the seller would deduct Rs. 2 Lakh from the amount received from the purchaser but in any case, the last date was fixed as 30.11.2018, however, the Appellant did not pay or perform his part of the contract by depositing the remaining amount of consideration, therefore, in our considered opinion, he is not protected under Section 53A of the Act, 1882. 13. In so far as the issue regarding the jurisdiction of the Adjudicating Authority is concerned, the judgments relied upon by the Appellant are all decided on its own facts. 14. Section 60(5) of the Code provides the power to the Adjudicating Authority which can be invoked to entertain or dispose of any claim made by or against the corporate debtor or corporate person, including claims by or against any of its subsidiaries situated in India; and also any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under this Code. Section 238 of the Code creates an overriding effect which provides that the provisions of this Code shall have effect, notwithstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Corporate Debtor must exist." 16. It has been held that the non-obstante clause in Section 60(5) is designed for a different purpose to ensure that the NCLT alone has the jurisdiction when it comes to applications and proceedings by or against a corporate debtor covered by the Code, making it clear that no other forum has jurisdiction to entertain or dispose of such applications or proceedings. It was held by the Hon'ble Supreme Court that the NCLT has the jurisdiction to adjudicate disputes, which arise solely from or which relate to the insolvency of the corporate debtor but it has also been held that while doing so, the Tribunal may not usurp the legitimate jurisdiction of other courts, tribunals and fora when the dispute is one which does not arise solely from or relate to the insolvency of the corporate debtor and nexus with the insolvency of the corporate debtor must exist. It is pertinent to mention that the facts of the case of Gujarat Urja (Supra) are altogether different from the facts of the present case because in that case PPA was terminated solely on the ground of insolvency since the event of default contemplated under Article 9.2.1(e) was the commencement of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of Karnataka to execute the supplement lease deed. In the background of these facts, the Hon'ble Supreme Court has held that "therefore, in the light of the statutory scheme as culled out from various provisions of the IBC, 2016 it is clear that wherever the corporate debtor has to exercise a right that falls outside the purview of the IBC, 2016 especially in the realm of the public law, they cannot through the RP, take a bypass and go before NCLT for the enforcement of such a right" However, facts of the present case are altogether different from the aforesaid case. In so far as the decision in the case of Tata Consultancy Service Limited (Supra) is concerned, the Hon'ble Supreme Court has reiterated that the RP can approach the NCLT for adjudication of disputes which relate to the insolvency resolution process, but when the dispute arises dehors the insolvency of the corporate debtor, the RP must approach the relevant competent authority. Similar view has been expressed by this Court in the case of Sicom Ltd. (Supra). 19. Thus, the contention raised by the Appellant that the Adjudicating Authority had no jurisdiction to decide the lis between the parties in so far as the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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