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TMI Blog2024 (3) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... a Agarwal , Mr Siddharth Chapalgaonkar , Advocates JUDGEMENT JUSTICE YOGESH KHANNA , MEMBER ( JUDICIAL ) This appeal is against an impugned order dated 04.01.2024 passed by the National Company Law Tribunal, Court II, Mumbai Bench in an Interlocutory Application No.1160 of 2021 filed in CP No.1980/MB/2018 wherein the Learned NCLT had directed appellant to handover vacant and peaceful possession of the premises licensed to the Appellant by the Corporate Debtor within 15 days. 2. The impugned order has been challenged on the ground that the issue of eviction vests with the Learned Court of Small Causes under Section 41 of the Presidency Small Causes Courts Act, 1882 and though the Learned NCLT has placed reliance upon a judgement dated 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uses in inter-parties proceedings between the Appellant and the Respondent and a Writ Petition bearing No.11069/2022 filed by the Ld. Liquidator against the order of the Learned Court of Small Causes is still pending. 5. In support of his submissions the Learned counsel for the Appellant has referred to an order dated 06.10.2021 passed in LD Suit No.97/2021 in the Court of Small Causes at Mumbai wherein it had restrained the Liquidator from dispossessing the plaintiff or obstructing his vacant and peaceful possession of the suit premises either by himself or through any other person, without following due process of law till disposal of the suit. It is argued that the appellant went in Writ Petition but did not get any favourable order and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in passing the impugned order which would be necessary to put the liquidator in possession of the premises in question and the same does not need any intervention. In that matter too, the appellant therein had obtained an injunction from Small Causes Court, while the Liquidator had moved an application for eviction of the appellant before the Adjudicating Authority Therefore, the law laid in Adinath Jewellery Exports (Supra) squarely applies to the facts of this case. 11. The Liquidator, subject to the directions of the Adjudicating Authority, shall have the powers and duties u/s 35(1)(b) of the IB Code, 2016 to take into his custody or control all assets, property, effects and actionable claims of the Corporate Debtor. Under Section 35( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view that the aforementioned suit is barred u/s 63 of the Code. We also wish to add that by virtue of Section 238 of the Code, the provisions of the Code override other laws notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Further, it is also not out of place to mention that by virtue of Section 33(5) of the Code, no suit or other legal proceeding shall be instituted by or against the Corporate Debtor when a liquidation order has been passed. In the instant case, the Liquidation Order dated 15th November, 2019 was passed by the Adjudicating Authority u/s 33 of the Code; whereas the Suit was instituted by the Respondent against the Liquidator of the Corporate Debtor in 2021 after the Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ath Jewellery (supra) to say the Hon'ble tribunal cannot ordinarily usurp legitimate jurisdiction of other Courts in exercise of its residual functions under Section 60(5) of the IBC Code, but section 60(5)(c) rather notes : - "(c) 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." 10. Even otherwise, the issue of passing an eviction order qua immovable properties forming part of assets of Corporate Debtor, despite injunctions, have been discussed in various judgements. In Jhanvi Rajpal Automotive Pvt Ltd versus RP of Rajpal Abhikaran Pvt Ltd & Anr Company Appeal No.1417 of 2022, thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontending in the facts of that case the premises was sold and/or the proceedings were at different stage. However, the issue is not qua the stage of the proceedings but is whether the Tribunal has jurisdiction to entertain such an application and it was conclusively held the Tribunal has jurisdiction and the liquidator is not required to file a suit and can approach the Ld. Tribunal. 13. The argument that despite five attempts Respondent has been unable to carry out auction sale is also not convincing as it may be due to appellant being in possession, as no intending purchaser may purchase premises in an auction, which is in possession of someone else and may land such intending purchaser(s) in litigation. Even the subsisting status quo as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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