The NCLT has exclusive jurisdiction under the IBC Code, and property dues of KMC do not take precedence over the dues of other classes of secured creditors.

JUDGMENT

Subrata Talukdar, J. - This appeal arises out of the Judgement and Order dated 29th January 2021 of the Hon'ble Single Bench in the writ petition. The appellants are the Kolkata Municipal Corporation (KMC) and its Commissioner. The effective contesting respondents are the Respondent No. 3, axis Bank Ltd (for short axis Bank only) and the Respondent No.4, the Resolution Professional (for short RP) representing one M/s. Maximum agency Private Ltd. (hereinafter referred to as the Corporate Debtor) presently under a Corporate Insolvency Resolution Process (for short CIRP) before the National Company Law Tribunal (for short NCLT), Kolkata Bench.

2. The short facts leading to this appeal are as follows:

3. That the Corporate Debtor, M/s. Maximum agency Private Ltd., owed property taxes to the KMC. For satisfying its outstandings of property tax, KMC acted under its statute which is the KMC act, 1980 in the year 2015 attaching the sole immovable property of the Corporate Debtor. However, no further steps were taken by KMC to act on the attachment by way of auctioning the said immovable property for the purpose of monetizing its outstandings of property tax. In such a situation, the Respondent No.3/ axis Bank, being a secured creditor of the Corporate Debtor, instituted proceedings under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for short the IBC Code). The proceedings under Section 7 of the IBC Code were instituted in the year 2019 before the NCLT, Kolkata Bench including the sole immovable asset of the Corporate Debtor, now under order of attachment by the KMC.

4. It is a matter of record that KMC added itself in the proceedings before the NCLT, Kolkata Bench for recovery of its outstanding property tax dues qua the Corporate Debtor. However, the RP applied before the NCLT for valuation of the immovable property of the Corporate Debtor as part of the liquidation process involving the claims of all creditors in the IBC proceedings. KMC resisted such a move and, upon the NCLT directing the RP to take over the immovable asset of the Corporate Debtor, KMC challenged such order before the Hon'ble Single Bench in a writ petition. The Hon'ble Single Bench by its Judgement and Order dated 29th January, 2021 was pleased to dismiss the challenge of the KMC to the order dated 17th December, 2019 of the NCLT directing the hand over of physical possession of the said immovable property of the Corporate Debtor bearing the municipal holding number 127a, Sarat Bose Road, Kolkata-26 to the RP. Being aggrieved, the KMC has preferred this appeal before this Court.

5. Mr. ashok Kr. Banerjee, Learned Senior Counsel appearing for the appellants, takes this Court straightaway to Paragraph-38 of the Judgement and Order impugned. Paragraph-38 reads as follows:

'38. as such, a combined reading of the aforesaid propositions, as laid down in the various judgments, boil down to the ratio that, although a wrongful exercise of available jurisdiction would not be sufficient to invoke the High Court's jurisdiction under article 226 of the Constitution, the ground of absence of jurisdiction could trigger such invocation. Hence, in view of the nature of challenge involved in the present writ petition, the same is maintainable in law.'

6. It is submitted that the Hon'ble Single Bench was of the view, as reflected in Paragraph -38 (supra), that the NCLT lacked jurisdiction to pass the Order dated 17th December, 2019 directing the RP to take physical possession of the said immovable asset. It is argued that since NCLT, Kolkata Bench lacked jurisdiction, the writ petition was held to be maintainable by the Hon'ble Single Bench and to this aforesaid extent KMC had succeeded in establishing that any action to be taken by the RP apropo the said immovable asset can be the subject matter of challenge in a writ petition.

7. In support of his arguments, Learned Senior Counsel relies heavily upon the Judgement and Order of the Hon'ble apex Court in Civil appeal (Ca