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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 ..... ve effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. It was held by the Hon ble Supreme Court in Gujarat Urja [ 2021 (3) TMI 340 - 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 - The termination is not on a ground independent of the insolvency, therefore, the dispute in that case solely arising out of and relates to the insolvency of the corporate debtor and it was thus held that the RP can approach the NCLT for adjudication of the dispute that were related to the insolvency resolution. Similarly, in the present case also, the issue is in regard to the title of the property of the Corporate Debtor which is in CIRP and as per Section 60(5)(c) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Nehru Ground, NIT, Faridabad, executed between the Corporate Debtor and Ramesh Singh Rawat (the Appellant) proprietor of R. R. Systems. The total sale consideration of the above said property was fixed at Rs. 75,00,000/-. 3. The RP made the prayer in the application that in the absence of a sale deed, the Appellant herein has not acquired the ownership rights and that some unidentified person is residing in property no. 2 because of which he is unable to take possession of the asset of the Corporate Debtor. In the application, prayer was thus made for eviction of the Appellant from the property of the corporate debtor and also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the contract through a suit before the Civil Court whereas the right of the Appellant has been closed by the Adjudicating Authority by way of impugned order. 7. On the other hand, Counsel for the Respondent has submitted that the Appellant has made the payment of Rs. 30,40,000/- as alleged and in the manner as follows:- i. Rs.8 Lakhs in cash (of which there is no record other than mention in the Agreement to Sell); however, since the same has been acknowledged by the Corporate Debtor, the said amount has been admitted as Appellant's claim; ii. Rs.7 Lakhs through RTGS UTR No.ORBCH1809004450 dated 31. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 formalities than the said seller shall be liable to refund to the said purchaser double of the earnest money received by him and in case the purchaser does not accept such liquidated damages the purchaser shall have the right to get sale of said property effected through court or law under specific performance of the contract 11. According to the Appellant, the date for execution of sale deed was extended on 31.05.2018 and on 29.05.2018 he was put in possession. He relies upon a receipt dated 29.05.2018. The said receipt is of Rs. 10,00,000/- paid towards the part payment by the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. 15. In this regard, observations made by the Hon ble Supreme Court in the case of Gujarat Urja (Supra) is required to be referred to which read as under:- 71. The institutional framework under the IBC contemplated the establishment of a single forum to deal with matters of insolvency, which were distributed earlier across multiple fora. In the absence of a court exercising exclusive jurisdiction over matters relating to insolven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 insolvency proceedings against the corporate debtor. In the absence of the insolvency of the corporate debtor, there would be no ground to terminate the PPA. The termination is not on a ground independent of the insolvency, therefore, the dispute in that case solely arising out of and relates to the insolvency of the corporate debtor and it was thus held that the RP can approach the NCLT for adjudication of the dispute that were related to the insolvency resolution. 17. Similarly, in the present case also, the issue is in regard to the title of the property of the Corporate De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 application is concerned, is rejected. 20. It is also pertinent to mention that the argument raised by the Appellant that the Appellant is entitled to double of the earnest money paid towards the part performance, in view of clause 7 of the agreement is concerned, it would not apply to this case because there was no denial on the part of the Corporate Debtor for the execution of the sale deed rather it was agreed by both the parties that the Appellant shall complete his part of the contract by 30.11.2018 which he had failed to perform, therefore, we do not find any subst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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