NCLAT : In Excel Metal Processors Ltd. vs. Benteler Trading International GMBH and Anr.

Since NCLT has jurisdiction to entertain an application under I&B Code, the Parties cannot derive advantage of the terms of the Agreement where Parties agreed that any suit or case being maintainable only in the Court outside India.

Learned Counsel appearing on behalf of the Appellant referred to the Agreement reached between the parties which state that any suit or case is maintainable only in the Court at Germany and thus no case can be filed in any Court in India. Therefore, Counsel has raised the question of jurisdiction of the National Company Law Tribunal, Mumbai Bench in entertaining the application under Section 9 of the I&B Code.

The Appellate Tribunal inclined to accept the aforesaid statement stating that it is now settled and decided by this Appellate Tribunal in Binani Industries Limited vs. Bank of Baroda and Anr. – Company Appeal (AT) (Insolvency) No. 82 of 2018 wherein it was held that ‘Corporate Insolvency Resolution Process’/ Insolvency Proceedings is not a ‘suit’ or a ‘litigation’ or a ‘money claim’ for any litigation; No one is selling or buying the ‘Corporate Debtor’ a ‘Resolution Plan’; It is not an auction; it is not a recovery, which is an individual effort by the creditor to recover the dues through a process that had debtor and creditor on opposite sides; and it is not liquidation. The object is mere to get resolution brought about, so that the Company do not default on dues.

Pursuant to Section 408 of the Companies Act, 2013, the National Company Law Tribunal has been constituted in different States. In terms of the said provision, the Central Government has notified and vested the power on respective National Company Law Tribunals to deal with the matter within its territory, where the registered Offices of the Companies are situated. As per Section 60(1) of the I&B Code, “The Adjudicating Authority, in relation to insolvency resolution and liquidation for corporate persons including corporate debtors and personal guarantors thereof shall be the National Company Law Tribunal having territorial jurisdiction over the place where the registered office of the corporate person is located”. As admittedly, the Registered Office of the ‘Corporate Debtor’ namely – Excel Metal Processors Private Limited is situated at 132, B, Mittal Towers Nariman Point, Mumbai-400021, we hold that the National Company Law Tribunal, Mumbai Bench has the jurisdiction to entertain an application under Section 9 of the I&B Code and the Appellant cannot derive advantage of the terms of the Agreement reached between the parties.

(Link : https://nclat.nic.in/Useradmin/upload/10988855095d5e7f178fb64.pdf)