Nitin Jain vs Universal Tutorial Private Limited

[Arising out of order dated 10.02.2021 passed by the Adjudicating Authority (National Company Law Tribunal, Ahmedabad Bench, Court 1) in IA/73(AHM)2021 in CP(IB) 37 of 2017 with IA/90(AHM)2021]

IN THE MATTER OF: Nitin Jain Partner AAA Insolvency Professionals LLP E 10A, Kailash Colony New Delhi - 110048 ....... Appellant. Versus Universal Tutorial Private Limited 301, Vardhaman Chambers, Plot No. 84 Sector 17, Vashi Navi Mumbai-400705. ....... Respondent. Present: For Appellant: Mr. Amar Vivek, Mr. Abhinav Tyagi, Advocates. For Respondent:- Mr. Harsh N Gohhale, Mr. Jaidev Ali, Advocates.

JUDGMENT

(23rd May, 2023)

Justice Anant Bijay Singh;

The present Appeal is being preferred by Mr. Nitin Jain (hereinafter to be

referred to as Appellant/Liquidator) under Section under Section 61 of the

Insolvency & Bankruptcy Code, 2016 (for short IBC) against the impugned order 2

dated 10.02.2021 passed by the Adjudicating Authority (National Company Law

Tribunal, Ahmedabad Bench, Court 1) in IA/73(AHM)2021 in CP(IB) 37 of 2017

with IA/90(AHM)2021 whereby the Adjudicating Authority disposed of the

Application i.e. IA/73(AHM)2021 filed by the Appellant, refused to grant the

reliefs sought by the Appellant. In the said Application prayer sought by the

Appellant is reproduced below:

"a. Allow the present application b. Direct the Respondent to vacate the premise E-1, E-2, E-3 Shiv Parvati Co-operative Housing Society Limited at plot no. 106-110 Sector-21, Nerul, Navi Mumbai.

c. Direct the Respondent to co-operate with the Liquidator to show the said premise to the prospective investors.

d. Pass any such order(s) that this Hon'ble Adjudicating Authority may deem fit in the interest of justice."

2. The facts giving rise to this Appeal are as follows:

i) The Corporate Debtor is a company incorporated on 24.08.1987, under

the provisions of companies Act, 1956. The Corporate Debtor itself filed an

application under Section 10 of the Code for initiation of corporate insolvency

resolution process ("CIRP") against the company, since it was unable to pay debts

to its creditors. The Adjudicating Authority vide its order dated 15.02.2019

admitted their petition and initiated CIRP against the Corporate debtor and vide

same order the Adjudicating Authority appointed Mr. Nilesh Sharma as the

Interim Resolution Professional.

ii) The Appellant was appointed as Resolution professional of the Corporate

Debtor vide order dated 30.08.2019. The Appellant filed an application under

Company Appeal (AT) (Insolvency) No. 337 of 2021 3

Section 33(1)(a) for liquidation of the Corporate Debtor since 330 days of the

CIRP period was over and no resolution plan was approved. The Adjudicating

Authority vide order dated 11.09.2020 passed an order for liquidation of the

Corporate Debtor and appointed as the Liquidator.

iii) Prior to the onset of CIRP, the Corporate Debtor and Universal Tutorial

Private Limited Respondent herein had entered into a Leave and Licence

agreement dated 19.12.2005 for premises E-1, E-2, E-3 admeasuring 2872 Sq.

ft. of built-up area in Shiv Parvati co-operative Housing society Limited situated

at plot no. 106-110 Sector-21, Nerula, Navi Mumbai. In terms of the agreement

dated 19.12.2005, the Respondent made a security deposit of sum amounting to

Rs. 7,75,440/-. Further, the parties mutually agreed to extend the period of the

said leave and license. The Directors of the Respondent passed a resolution dated

26.12.2016 according approval for renewal of Leave and License Agreement

between Corporate Debtor and Respondent, for a period of 33 months i.e. from

01.11.2016 till 31.07.2019. In pursuance of the afore-mentioned resolution

dated 26.12.2016 executed a Leave and License Agreement dated 09.01.2017 in

which Clause (a) of the said agreement specified the period of us of the premises

by the Respondent.

iv) Meanwhile corporate insolvency resolution process was initiated against

the Corporate Debtor vide Order dated 15.02.2019 passed by the Adjudicating

Authority. The said Leave and License Agreement dated 09.01.2017 expired on

31.07.2019. Subsequently the Appellant was appointed as the Resolution

professional vide Order dated 30.08.2019 of the Adjudicating Authority and later

Company Appeal (AT) (Insolvency) No. 337 of 2021 4

on as the Liquidator vide Order dated 11.09.2020. Pursuant to his appointment

as the Liquidator, the Appellant in order to take custody and control of the assets

of the Corporate Debtor served a notice upon the Respondent dated 24.09.2020

to vacate the said premises. The said notice was done after the expiry of the

period specified in the Leave and License Agreement dated 09.01.2017. The said

Leave and Licence agreement was not renewed or extended either by the

Resolution Professional and/or by the Liquidator. The Respondent while taking

the said premise on Leave and License basis had given a security deposit of Rs.

7,75,440/- on 21.07.2005 to the Corporate Debtor. It is pertinent to mention

that the Respondent was paying rent of the said premise @ Rs.1,90,080 from

01.08.2019 onwards (computed as 5% increase from monthly rent of Rs.

181,029/- payable till 31.07.2019).

v) The Appellant again sent a reminder notice through email dated

10.12.2020 to the Respondent for vacating the said premises. It is pertinent to

mention that despite notices being served and having knowledge about the

liquidation of the Corporate Debtor, the Respondent did not vacate the said

premise and is continuing to illegally hold the possession of the subject premise

which is part of the liquidation estate of the Corporate Debtor till now. The

Respondent contrary to the agreed monthly rental in term so the Board

Resolution dated 26.12.2016 and Agreement dated 09.01.2017 paid 50 percent

of the agreed rent from April, 2020 to June, 2020. It is pertinent to mention that

the similarly for months July 2020 to Feb 2021 the Respondents have made

Company Appeal (AT) (Insolvency) No. 337 of 2021 5

payment of 75 percent of the agreed rent. The Respondents have not furnished

any justification for the said reduction in the payment of the rent.

vi) Further case is that an outstanding fee to the tune of Rs. 7,32,301/- in

regard to the Leave and License Agreement is pending from the Respondent on

account of less fee paid to the Corporate Debtor as elucidated above. The said

amount is due as per the General Ledger statement of Universal Tutorials held

maintained by the corporate debtor. Despite receiving eviction notices dated

24.09.2020,16.11.2020, and 10.12.2020 the Respondent instead of vacating the

premise is paying rent without any direction from the Liquidator in this regard.

The outstanding receivable has been duly adjusted from the security deposit paid

by the respondent and a net amount to the tune of Rs. 43, 139/- is payable to

the respondent after vacating the said premise. Therefore, it is submitted that

the Respondent can file a claim with the Liquidator for the said amount after

vacating the premise.

vii) The Appellant thereafter sent out two more eviction notices dated

16.11.2020, and 10.12.2020. However, to the utter dismay of the Appellant the

respondent had not vacated the said premises which form part and parcel of the

liquidation estate of the Corporate Debtor. Despite receiving several notices for

vacating the said premise, did not respond to the said notices and continue to

enjoy the possession over the said land without any authorization from the

Liquidator. Instead of vacating the premise the Respondent is paying rent

without any direction from the Liquidator in this regard that if the outstanding

receivable is adjusted from the Security Deposit paid by the respondent a net

Company Appeal (AT) (Insolvency) No. 337 of 2021 6

amount to the tune of Rs. 43, 139/- is payable to the Respondent after vacating

the said premise for which the respondent can file claim with the Liquidator.

Accordingly, the appellant filed an application before the Hon'ble Adjudicating

Authority under Section 35 Sub-Section (1) (n) read with Section- 60 Sub-Section

(5) of the Code seeking Order directing the Respondent to vacate the premise E-

1, E-2, E-3 (supra). The application i.e IA No. 73 of 2021 was filed with prayer

sought by the Appellant (supra) and after hearing the parties, the Adjudicating

Authority has wrongfully and erroneously disposed of the said application which

led to filing of this Appeal.

3. The Ld. Counsel for the Appellant during the course of argument and in

his memo of appeal along with written submissions submitted that prior to

commencement of CIRP of the Corporate Debtor, the Corporate Debtor had

entered into a Leave and License agreement dated 19.12.2015 with the

Respondent Company for E-1, E-2, E-3 admeasuring 2872 Sq. Ft. of built-up

area in Shiv Parvati Co-operative Housing Society Limited situated at Plot no.

106-110 Sector-21, Nerul, Navi Mumbai (hereinafter to be referred to as the 'said

premises'). It is pertinent to mention that in terms of the agreement dated

19.12.2005, the Respondent made a security deposit of Rs. 7,75,440/-. Further,

the parties had mutually agreed to extend the period of lease for a period of 33

months i.e. from 01.11.2016 till 31.07.2019 vide agreement dated 09.01.2017.

The agreement came to an end on 31.07.2019. The Appellant had served notice

on 24.09.2020, 16.11.2020 and 10.12.2020 upon the Respondent to vacate the

premises. It is pertinent to mention that the Respondent was paying rent of the

Company Appeal (AT) (Insolvency) No. 337 of 2021 7

said premise @ Rs. 1,90,080 from 01.08.2019 onwards (computed as 5%

increase from monthly rent of Rs. 181,029/- payable till 31.07.2019). The

Respondent contrary to the agreed monthly rental in terms of the Board

Resolution dated 26.12.2016 and Agreement dated 09.01.2017 paid 50 percent

of the agreed rent from April, 2020 to June, 2020. That similarly for month of

July 2020 to February 2021, the Respondents have made payment of 75% of the

agreed rent amount. The Respondent has not provided any justification for the

same. Further, the timelines of events that took place is hereunder:

Event Date

Leave and License Agreement 19.02.2015

Modified Leave and License Agreement 09.01.2019

CIRP 15.02.2019

Leave and License Agreement came to an end 31.07.2019

Appellant appointed as the Resolution Professional 30.08.2019

Liquidation 11.09.2020

4. It is further submitted that the Respondent herein did not vacate the said

premises irrespective of eviction notices being served upon them and continued

to enjoy possession of the said premises without any authorization. Aggrieved by

the same, the Appellant preferred an Application bearing IA No. 73 of 2021 before

the NCLT seeking order against the Respondent to vacate the said premises.

However, the NCLT vide order dated 10.02.2021 disposed off the said application

with the direction that the Appellant may proceed to file eviction suit in the

Company Appeal (AT) (Insolvency) No. 337 of 2021 8

proper Court. Further, vide the said order, the Tribunal surpassed its

jurisdiction by delving into the question of title of the property. The said issue

was never raised before the Tribunal and that there exists no dispute as to the

title of the said premises and the same is registered in the name of the Corporate

Debtor vide sale deed dated 02.06.1999. A perusal of Section 60(5) of the IBC

shows that any application by or against the Corporate Debtor has to be heard

only by the NCLT and not by any other forum which is reiterated by the Hon'ble

Supreme Court in "Arcelor Mittal India Private Limited v Satish Kumar

Gupta (2019) 2 SCC 1" held that:

"83. ............... The non-obstante Clause in Section 60(5) is designed for a different purpose: to ensure that the NCLT alone has 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."

5. Further, Hon'ble Supreme Court in "Embassy Property Developments

Pvt Ltd v State of Karnataka and others reported in 2019 SCC OnLine SC

1542" has appropriately determined the jurisdiction of the Adjudicating

Authority to decide all types of claims with property of the corporate debtor. It is

pertinent to mention that only in wherever the corporate debtor has to exercise

a right that falls outside the purview of through the resolution professional, take

a bypass and go before NCLT for the enforcement of such a right. The Ld.

Adjudicating Authority is provided with a specific jurisdiction, the Civil Courts

have no jurisdiction in respect of matters under Section 43, 44, 45 & 48 of the

Code, etc. When these provisions are read in conjunction with other provisions

Company Appeal (AT) (Insolvency) No. 337 of 2021 9

of the Code such as 18(f)(vi), 25(2)(b) and 35(1)(k) of the Code, the jurisdiction of

the Adjudicating Authority does extend to subjects such as recovery of money,

specific performance, eviction proceedings, etc. which were to be dealt with by

Civil Courts only.

6. Further, Section 63 of the Code provides that no civil court or authority

shall have jurisdiction to entertain any suit or proceedings in respect of any

matter on which National Company Law Tribunal or the National Company Law

Appellate Tribunal has jurisdiction under this Code. Therefore, as a suit for

eviction can be brought through a civil court necessitates an interpretation that

Section 60(5)(c) providing for any question of law or facts, arising out of or in

relation to the insolvency resolution or liquidation proceeding confers required

jurisdiction over NCLT to adjudicate disputes concerning the corporate debtor

the relief for which lies in personam.

7. It is further submitted that in case the Appellant sells the said property

while the Respondents are occupying the premise, the same would not fetch the

fair value and in fact, would fetch far less price which it would otherwise be able

to fetch in a sale. The unauthorized occupied flats are part of the Liquidation

estate, and the proceeds received from the same would be for the benefit of all

the creditors of the Corporate Debtor. The such retention of the possession and

refusal of handing over of the premise owned by the Corporate Debtor is likely to

affect all the creditors of the Corporate Debtor who is by the distribution of asset

under Section 53 of the Code, is entitled to the proceeds out of the liquidation.

Company Appeal (AT) (Insolvency) No. 337 of 2021 10

8. The NCLT, Mumbai Bench in the matter of Alchemist Assets

Reconstruction Company Limited v Precision Fasteners Ltd. [CP. No. (IB)

1339 (MB)/2017] has also directed to vacate the possession of the liquidation

estate on a similar occasion where certain occupants continued to occupy the

subject properly. Section 238 of the IBC and the underlying non-obstante clause,

its widest amplitude would override anything inconsistent contained in any other

enactment and it would not be unreasonable to hold that provisions of the Code

will have overridden effect over the other provisions of rent legislation for the

time being in force and shall supersede over any other right guaranteed under

the rent legislations. The validity of the said Section 238 has been upheld in

Duncans Industries Ltd. V. A.J. Agrochem [(2019) 9 SCC 725].

9. The NCLAT in the matter of Jhanvi Rajpal Automotive Pvt. Ltd. v R.P.

of Rajpal Abhikaran Pvt. Ltd. & Anr. [Company Appeal (AT) (Insolvency) No.

1417 of 2022, decided on 05.01.2023] a similar issue arose wherein the lease

of the Respondent came to an end and the premises of the Corporate Debtor was

not vacated. This Tribunal held that "...... 20. Accepting the contention of the

Learned Counsel for the Appellant that RP is obliged to file a suit for eviction of the

Appellant under MP Accommodation Control Act, 1961 even though lease in favour

of the Appellant has expired shall be unduly prolonging the insolvency process

which is a time bound process. When the Corporate Debtor has the ownership

rights over the premises which premises can be taken in control by IRP/RP, we

are of the view that for eviction of the Appellant especially in event when lease in

Company Appeal (AT) (Insolvency) No. 337 of 2021 11

favour of the Appellant has come to an end, filing a suit is not contemplated in the

statutory scheme contained in IBC."

10. It is further submitted that the Respondent has paid 50% against net

receivable lease rent from April 2020 to June 2020 and has paid 75% against

net receivable lease rent from July 2020 to February 2023. Therefore, up till

28.02.2023, the total amount payable by the Respondent is Rs. 21,47,325/-. The

same is calculated after adjusting the same with Security deposit at Rs.

7,32,301/-. Based on these submissions, the impugned order be set aside and

the Appeal be allowed.

11. The Ld. Counsel for the Respondent in his Reply Affidavit along with

written submissions submitted that issue involves in the present case is that

jurisdiction of National Company Law Tribunal. The Civil Court has no bar in

adjudicating dispute which does not fall within ambit of the Code:-

a) The Appellant has taken plea that Section 63 of the Code restricts the

Appellant to file eviction suit before Civil Court. However, Section 63 of the Code

states that Civil Court will not have jurisdiction in matter which comes within

the ambit of Adjudicating Authority.

b) The present dispute is civil in nature and Adjudicating Authority has

rightly observed and held that as far as the dispute relating to title of the

Corporate Debtor, permitted the liquidator to file eviction suit in the proper

Court. The Adjudicating Authority admitted this fact that it does not have

jurisdiction to adjudicate the matter. Therefore, Section 63 of the Code will not

bar the Appellant from filing eviction petition before appropriate court.

Company Appeal (AT) (Insolvency) No. 337 of 2021 12

c) The NCLT has in its judgment dated 27th October, 2020 in the matter of

Asset Reconstruction Company (India) Limited v. Precision Fasteners

Limited [C.P. (IB) No. 1339/NCLT/MB/2017 held that jurisdiction to grant

reliefs of recovery of rent from tenant and the eviction of tenant from the property

of the corporate debtor lies in the exclusive domain of the civil court, as a result,

such issues cannot be dealt with by the Adjudicating Authority as defined under

Section 5(1) of the IBC by invoking Section 60(5) of the IBC.

d) In the judgment of Hon'ble Supreme Court in the case of Embassy

Property Developments Private Limited v. State of Karnataka and others

[2019 SCC OnLine SC 1542] wherein it was held that "If NCLT has been

conferred with jurisdiction to decide all types of claims to property, of the corporate

debtor, Section 18(f)(vi) would not have made the task of the interim resolution

professional in taking control and custody of an asset over which the corporate

debtor has ownership rights, subject to the determination of ownership by a court

or other authority. ..... Section 25(1) and 25(2)(b) reads as follows: 25. Duties of

resolution professional - (1) It shall be the duty of the resolution professional to

preserve and protect the assets of the corporate debtor, including the continued

business operations of the corporate debtor (2) For the purposes of Sub-section 91),

the resolution professional shall undertake the following actions: (a) .... (b)

represent and act on behalf of the corporate debtor with third parties, exercise

rights for the benefit of the corporate debtor in judicial, quasi-judicial and

arbitration proceedings. This shows that wherever the corporate debtor has to

exercise rights in judicial, quasi-judicial proceedings, the resolution Professional

Company Appeal (AT) (Insolvency) No. 337 of 2021 13

cannot short-circuit the same and bring a claim before NCLT taking advantage of

Section 60(5).

e) The applicability of the above-mentioned precedents to the instant matter

at hand, that is, whether the above judgments dealing with the powers and

duties of resolution professional could be applicable to liquidator. The Section

35(1)(k) of the IBC provides that, subject to the directions of the Adjudicating

Authority, the liquidator shall have the power to institute or defend any suit,

prosecution or other legal proceedings, civil or criminal, in the name of or on

behalf of corporate debtor. Further, Section 63 of the IBC provides for 'Civil Court

not to have jurisdiction' and Section 231 of the IBC provides for 'Bar of

jurisdiction'. Therefore, when the Adjudicating Authority is provided with a

specific jurisdiction under the IBC, the civil court has not jurisdiction in respect

of those specific matters such as preferential transactions, undervalued

transactions, etc. When the provisions of the IBC are read comprehensively, such

as Section 18(f)(vi), Section 25(2)(b) and Section 35(1)(K), it can be inferred that

the jurisdiction of the Adjudicating Authority does not extend to subjects such

as recovery of money, specific performance, eviction proceedings, etc. which were

to be dealt with by civil court only.

f) Further, in pursuance of the scheme of the Code, the NCLT has given the

necessary permission to the liquidator to proceed and to take action and yet the

Liquidator has not taken any steps. Thereby indicating that the claim and the

sought-after objective of the liquidator is not serious and not necessary for the

Corporate Debtor. The judgment of this Tribunal upholding the rejection of

Company Appeal (AT) (Insolvency) No. 337 of 2021 14

resolution plan in the matter of K.L. Jute Products Private Limited v Tirupti

Jute Industries Limited and Others [ Company Appeal (AT) (Ins.) No. 277 of

2019]. The relevant portion is as follows: "Insofar as, the eviction of 2nd

Respondent is concerned, the Adjudicating Authority is not empowered to pass an

order of eviction and it is for an 'Aggrieved party' to move the appropriate forum

for redressal of its grievances in accordance with Law..." .

g) The IBC is a complete code in itself, the Adjudicating Authority can neither

enlarge nor amplify its jurisdiction. Therefore, the recovery of rent from the

tenant and the eviction of tenant from the Property of the Corporate Debtor is in

the exclusive domain of the civil court and cannot be dealt with by the

Adjudicating Authority under the IBC. The jurisdiction to deal with such matters

lies exclusively with the civil court/rent control court only. Hence, the NCLT

advised the parties to approach the appropriate jurisdictional civil court for the

remedies sought.

h) Since the respondent paid rent and also continuously tried to pay rent for

the Property, which is an admitted fact, the Liquidator was right in including

this Property in the liquidation estate of the Corporate Debtor. Further, the

Liquidator may proceed take steps to sale the Property so that there will be a

clear title for the Property. Insofar as the sale of the Property by the Liquidator

concerned. The Liquidator could do so after taking possession of the Property by

due process of law or let the new title holder of property to decide whether the

new owner want to continue with the leasing property to the Respondent or not.

Company Appeal (AT) (Insolvency) No. 337 of 2021 15

i) It is submission of the Respondent that the powers of the liquidator and

thereby in corollary interpreted the limited scope of the Adjudicating Authority

under the IBC. By reading the various provisions of the IBC comprehensively

and in view of the legislative intent, the power to grant the relief of recovery of

rent from tenant and the eviction of tenant from the property of the corporate

debtor lies with the appropriate jurisdictional civil court. It is important to note

that a Civil Court has jurisdiction by virtue of Section 9 of the Code of Civil

Procedure, 1908 to try all suits of civil nature excepting suits of which cognizance

is either expressly or impliedly barred. However, the Adjudicating Authority

under the IBC does not have jurisdiction to all suits since the various

professionals working towards the resolution/liquidation of the corporate debtor

have the power to approach other appropriate authorities for seeking reliefs.

Therefore, the Adjudicating Authority can exercise only such powers within the

contours of its jurisdiction, as prescribed by the statute, the law in respect of

which, it is called upon to administer.

j) The Hon'ble Supreme Court in the matter of Gujrat Urja Vikas Nigam

Ltd. v. Amit Gupta & Ors. [(2021) 7 SCC 209] and Tata Consultancy Services

Ltd. v. SK Wheels Pvt. Ltd. [(2022) 2 SCC 583], matter has already considered

the scope of Section 60(5) and concluded that the Hon'ble Tribunal has

jurisdiction to adjudicate disputed, which arise solely form or which related to

the insolvency of Corporate Debtor only. It is further submitted that purview of

Insolvency is limited to the provisions of the Code.

Company Appeal (AT) (Insolvency) No. 337 of 2021 16

12. It is further submitted that New Agreement was executed by mutual

understanding between Corporate Debtor and Respondent:

a) The Respondent show his interest to continue tenancy in the Tenanted

Premises, therefore, approached Corporate Debtor to extend the New Agreement.

After discussion between the parties, New Agreement was extended wherein it

was decided between the parties that no formal renewal is required. It was

further decided that rent will be increased by 5% as stipulated in New Agreement.

The internal communication of Corporate Debtor to extend New Agreement. The

said internal communication email dated 31.07.2019 (at page 106 of the Appeal)

of Corporate Debtor clearly stated that New Agreement will not be renewed and

Corporate Debtor will raise invoice with 5% increase in monthly rent.

b) The Appellant averment in the Appeal that New Agreement was not

extended is null and void. It is submitted that Resolution Professional was aware

of extension of New Agreement. Further, Respondent is paying rent for the

Tenanted Premises as per mutual understanding between the parties.

13. It is further submitted that 'eviction notice is void ab initio':

a) For the sake of argument, let assume that rent was not fully paid by

Respondent. Even then Appellant cannot issue Eviction Notice to Respondent,

as clause 9 of New Agreement states that Corporate Debtor had to give one month

period to Respondent to rectify the breach before terminating the New

Agreement. The Appellant neither terminated New Agreement neither give period

of one month to Respondent to rectify the breach. However, directly issued

Eviction Notice without given proper cause of it. The Appellant has issued

Company Appeal (AT) (Insolvency) No. 337 of 2021 17

Eviction Notice without considering clause 9 of New Agreement, which amount

to breach of contract from Appellant. Therefore, Eviction Notice and two reminder

notice is null and void ab initio. Based on aforesaid submissions, the Appeal be

dismissed with cost.

14. We have considered the submissions made on behalf of the parties and

perused the record.

15. Section 35 of IBC enumerated powers and duties of liquidator. Section

35(1) which is relevant for the present case is as follows:

"35. Powers and duties of liquidator.- (1) Subject to the directions of the Adjudicating Authority, the liquidator shall have the following powers and duties, namely:-

(a) to verify claims of all the creditors;

(b) to take into his custody or control all the asserts, property, effects and actionable claims of the corporate debtor;

(c) to evaluate the assets and property of the corporate debtor in the manner as may be specified by the Board and prepare a report; .......

(n) to apply to the Adjudicating Authority for such orders or directions as may be necessary for the liquidation of the corporate debtor and to report the progress of the liquidation process in a manner as may be specified by the Board; and

(o) to perform such other functions as may be specified by the Board."

16. We need to peruse Section 60(5) of the IBC. The said section read as

hereunder:

"60(5). Notwithstanding anything to the contrary contained in any other law for the time being in force, the National Company Law Tribunal shall have jurisdiction to entertain or dispose of-

Company Appeal (AT) (Insolvency) No. 337 of 2021 18

(a) any application or proceeding by or against the corporate debtor or corporate person;

(b) 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

(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."

17. Hon'ble Supreme Court in "Arcelor Mittal India Private Limited v

Satish Kumar Gupta (2019) 2 SCC 1" wherein it is held that:

"83. ............... The non-obstante Clause in Section 60(5) is designed for a different purpose: to ensure that the NCLT alone has 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."

18. The Ld. Counsel for the Appellant has placed reliance on judgment passed

by three Members Bench of this Tribunal in the case of "Jhanvi Rajpal

Automotive Pvt. Ltd. v R.P. of Rajpal Abhikaran Pvt. Ltd. & Anr. [Company

Appeal (AT) (Insolvency) No. 1417 of 2022, decided on 05.01.2023]". In the

above case, lease Agreement was not renewed and also no dispute that assets in

question is owned by the Corporate Debtor and this Appellate Tribunal laid down

following on the above background in paragraph 21:

"21. Thus, the contention of the Appellant that RP has to file a suit for eviction of the Appellant under the MP Accommodation Control Act, 1961 cannot be accepted. We thus, in view of the foregoing discussions are of the considered opinion that

Company Appeal (AT) (Insolvency) No. 337 of 2021 19

Adjudicating Authority has rightly allowed the Application filed by the RP directing the Appellant to vacate from the premises so that Resolution Plan which has been approved can be implemented. We thus do not find any merit in the Appeal, the Appeal is dismissed."

19. The aforesaid case was challenged before the Hon'ble Supreme Court in

Civil Appeal No(s). 736/ 2023 (Jhanvi Rajpal Automotive Pvt. Ltd. v R.P. of

Rajpal Abhikaran Pvt. Ltd. & Anr.) and the Hon'ble Supreme Court upheld

the order dated 05.01.2023 passed by this Tribunal in Company Appeal (AT)

(Insolvency) No. 1417 of 2022 (supra) vide order dated 10.02.2023.

20. In the present case also, Agreement was expired and further, Respondent

is paying rent for the Tenanted Premises as per mutual understanding between

the parties. The said internal communication email dated 31.07.2019 (at page

106 of the Appeal) of Corporate Debtor clearly stated that New Agreement will

not be renewed and Corporate Debtor will raise invoice with 5% increase in

monthly rent. Contrary to the above, the Tribunal noted the fact in the impugned

order is of the dispute relating to title of the Corporate Debtor. Therefore, the

Tribunal permitted the liquidator to file eviction suit in the proper Court.

21. Keeping in view the aforenoted facts and above discussions, we are of the

view that the Adjudicating Authority has failed to notice the above judgment

passed by three Member Bench of NCLAT which was upheld by Hon'ble Supreme

Court. The three Member Bench of NCLAT judgment binding on us. In view of

the fact, the impugned order dated 10.02.2021 passed by the Adjudicating

Authority (National Company Law Tribunal, Ahmedabad Bench, Court 1) in

IA/73(AHM)2021 in CP(IB) 37 of 2017 with IA/90(AHM)2021 is hereby set aside

Company Appeal (AT) (Insolvency) No. 337 of 2021 20

and the matter is remanded back to the Adjudicating Authority with a request

to pass afresh order in accordance with law at an early date.

22. Registry to upload the Judgment on the website of this Appellate Tribunal

and send the copy of this Judgment to the Adjudicating Authority (National

Company Law Tribunal, Ahmedabad Bench), forthwith.

[Justice Anant Bijay Singh] Member (Judicial)

[Naresh Salecha] Member (Technical)

New Delhi 23rd May, 2023 R. Nath.

Company Appeal (AT) (Insolvency) No. 337 of 2021