Dismissed

Gopikrishnan T v. Samson and Sons Builders and Developers Pvt. Ltd.

Kerala HC11 Feb 2022WP(C)/4347/2022

Case brief

AI extract

What is this about?

The High Court held that a writ petition under Article 226 is not maintainable to challenge the initiation of insolvency proceedings where a civil suit for specific performance regarding the property is pending. The court directed the petitioner to approach the NCLT or the Interim Resolution Professional.

What did the court decide?

Writ petition dismissed; liberty granted to approach NCLT or Interim Resolution Professional for redressal.

Gopikrishnan T Vs Samson and Sons Builders and… — Insolvency and Bankruptcy | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE N.NAGARESH

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FRIDAY, THE 11^TH DAY OF FEBRUARY 2022 / 22ND MAGHA, 1943

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WP(C) NO. 4347 OF 2022

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PETITIONER:

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GOPIKRISHNAN T

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AGED 49 YEARS S/O. THRIVIKRAMAN, 7E, SHREYASS MANSION, T.R.SUKUMARAN NAIR ROAD, PERUMTHANNI, THIRUVANANTHAPURAM-695008.

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BY ADVS. M.R.SUDHEENDRAN S.I.SHAH SARITHA NANDANAN

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RESPONDENTS:

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1 SAMSON AND SONS BUILDERS AND DEVELOPERS PVT. LTD., TC 3/679, KALIVEENA BUILDINGS, MUTTADA P.O., THIRUVANANTHAPURAM, PIN-695025.

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2 THE CHAIRMAN, SAMSON AND SONS BUILDERS AND DEVELOPERS PVT. LTD., REPRESENTED BY ITS MANAGING DIRECTOR, REGISTERED OFFICE TC 3/679, KALIVEENA BUILDINGS, MUTTADA P.O., THIRUVANANTHAPURAM, PIN-695025.

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3 LUKOSE JOSEPH, LUKOSE & SABU, CHARTERED ACCOUNTANTS, 34/1891E, ANAND TOWER, MAMANGALAM, PALARIVATTOM, NEAR METRO PILLER 492, ERNAKULAM-682025.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION

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ON 11.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 4347 OF 2022

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JUDGMENT

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Dated this the 11^th day of February, 2022

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The petitioner states that the 1^st respondent is a Private Limited Company engaged in construction work. The petitioner along with his mother-in-law entered into an agreement to purchase an apartment unit from the 1^st respondent. Possession of the apartment unit was handed over to the petitioner on 21.02.2016. Registration was not done. The petitioner therefore filed a Civil Suit for specific performance against the 1^st respondent. OS No.1/2017 is pending before the Sub Court, Nedumangad.

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In the meanwhile, the petitioner learnt that proceedings were initiated against respondents 1 and 2 by third parties under the Insolvency and Bankruptcy Code. The petitioner also learnt that the apartment unit which is in the possession of the petitioner has been included in the liquidation estate.

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WP(C) NO. 4347 OF 2022

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The petitioner states that the petitioner has absolute right over the apartment unit and a Civil Suit is pending before the Sub Court, Nedumangad. In such circumstances, the petitioner's property cannot be a subject matter of the insolvency proceedings. The Interim Resolution Professional has no right to import the petitioner's flat in the resolution process. The petitioner therefore prayed that there may be a direction to the respondent not to initiate or proceed with or finalize any proceedings relating to apartment No.B2 in the 2^nd floor of Sharon Hills Apartments Phase 1, which is the subject matter in Ext.P1 Suit, without notice and hearing the petitioner.

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I have heard the learned counsel for the petitioner.

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According to the petitioner, a Suit filed by him is pending before the Sub Court, Nedumangad, seeking specific performance of contract entered into by the 1^st respondent in favour of the petitioner, in respect of sale of the apartment unit. It is in the meanwhile that certain persons have initiated IBC proceedings against the 1^st respondent. Ext.P1 would show that the Interim

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WP(C) NO. 4347 OF 2022

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Resolution Professional has been appointed under IBC. As the Insolvency and Bankruptcy Code is a complete Code in itself, any proceedings challenging any of the orders or action in the insolvency proceedings, will have to be challenged in accordance with the provisions contained in the IBC. The petitioner will have to approach either the Interim Resolution Professional or the NCLT for redressal of his grievances. A writ petition under Article 226 is not maintainable.

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In the circumstances, the writ petition is dismissed granting liberty to the petitioner to approach the Interim Resolution Professional or the National Company Law Tribunal for redressal of his grievances. If the petitioner approaches the competent forum, this Court is sure that the forum will consider

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the application submitted by the petitioner on merit, condoning the delay, if any.

Sd/-

N.NAGARESH JUDGE

spk

WP(C) NO. 4347 OF 2022

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APPENDIX OF WP(C) 4347/2022

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PETITIONER EXHIBITS

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Exhibit P1 A TRUE COPY OF THE ORIGINAL SUIT NO.1/2017 ON THE FILE OF THE SUB COURT, NEDUMANGAD FILED BY THE PETITIONER. Exhibit P2 A TRUE COPY OF THE NOTICE DATED 15.11.2021 ISSUED BY THE 3RD RESPONDENT.

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RESPONDENT'S/S EXHIBITS : NIL

Gopikrishnan T v. Samson and Sons Builders and Developers Pvt. Ltd.

Case brief

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Gopikrishnan T v. Samson and Sons Builders and Developers Pvt. Ltd.

Case brief

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