SAHIDULLAH MUNSHI,J. - (1.) This G.A. No.2791 of 2017 has been filed by the defendant in a suit for recovery of khas possession and for mesne profit, praying for stay of all further proceedings in C.S. No.247 of 2010 on the ground that an insolvency proceeding has started under Section 10 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the 'said Code'). Although, no affidavit-in-opposition has been filed to the application filed by the defendant/petitioner. Mr. Deb Nath Ghosh, Learned Counsel appearing for the plaintiff/respondent submits that the order passed at the instance of the defendant/petitioner by the authority under the Insolvency Code (hereinafter referred to as the 'said Code') has no manner of application in the present case. He submits that according to the provisions of Section 14 of the said Code where moratorium has been declared, at the highest, the execution of the proceeding can be stayed. He submits that Section 14(1) (d) of the said Code is relevant for the present purpose which says that only recovery of any property by an owner or lessor where the property is occupied by or in the possession of the corporate debtor, is prohibited. Therefore, according to him, there can be no order staying further proceeding of the present suit. He further submits that Section 18 (1) (f) of the said Code which relates to the duties of interim resolution professional, specifies that the interim resolution professional shall perform duties amongst other to take control and custody of any asset over which the corporate debtor has ownership rights as recorded in the balance-sheet of the corporate debtor. Section 18(1) (f) is set out below : "18. Duties of interim resolution professional. - (1) The interim resolution professional shall perform the following duties, namely:-- (f) take control and custody of any asset over which the corporate debtor has ownership rights as recorded in the balance sheet of the corporate debtor, or with information utility or the depository of securities or any other registry that records the ownership of assets including-- (i) assets over which the corporate debtor has ownership rights which may be located in a foreign country; (ii) assets that may or may not be in possession of the corporate debtor; (iii) tangible assets, whether movable or immovable; (iv) intangible assets including intellectual property; (v) securities including shares held in any subsidiary of the corporate debtor, financial instruments, insurance policies; (vi) assets subject to the determination of ownership by a court or authority;"
(2.) Mr. Ghosh, learned Counsel for the plaintiff/respondent submits that admittedly, the defendant is a corporate debtor, who has got no ownership right in respect of the suit property for which recovery has been sought for by the plaintiff/respondent. According to him, if the interim resolution professional cannot take control and custody of any asset over which the corporate debtor has no ownership rights, mere appointment of interim resolution professional cannot stand in the way of proceeding with the suit where admittedly, the defendant, although, is a corporate debtor but not the owner of the suit property. According to him, the suit should proceed and there cannot be any stay. Mr. Ghosh, learned Counsel has also drawn attention of this Court to the preamble to the Act and submits that the Act is of very recent origin and there cannot be any provision in the law to interfere with his independent right for eviction of a tenant guaranteed under some other law and if that is allowed the same will tantamount to interference with his Constitutional Right to Property Protected under Article 300A of the Constitution of India. Therefore, there can be no proposition of law to hold that an owner or a landlord is debarred from proceeding with a suit against his tenant in respect of whom an insolvency proceeding is pending.
(3.) A question often arises whether the right guaranteed under the rent legislation by which a landlord is empowered to evict a tenant on certain given circumstances whether by virtue of the provisions of the Insolvency Code such rights of the landlord or landlady be allowed to be suspended. However, in view of the provisions made under Section 238 of the Insolvency Code such right can obviously be suspended inasmuch as provisions of the Code shall have effect notwithstanding anything consistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. In that view of the matter it will not be unreasonable to hold that provisions of the Code will have overriding effect on the provisions of rent legislation.;