The first argument canvassed by Mr. Arsiwala is that the present suit is not maintainable considering the bar contained in Section 33(5) of the IBC, 2016.
22. What sub-section 5 of Section 33 of the IBC, 2016 contemplates is that subject to Section 52, when a liquidation order is passed against the Corporate Debtor, no suit or other legal proceeding shall be instituted by or against the Corporate Debtor. Section 52 deals with the rights of the secured creditor in liquidation proceedings. The proviso to Section 33(5) stipulates that a suit or other legal proceeding may be instituted by the Liquidator, on behalf of the Corporate Debtor, with the prior approval of the Adjudicating Authority. When one reads Section 33(5), it is ex-facie clear that the said provision prohibits the institution of a suit or other legal proceeding against the Corporate Debtor only. It does not in any way prohibit the institution of a suit or other legal proceeding against a ship/Vessel owned by the Corporate Debtor when invoking the Admiralty Jurisdiction of this Court. I say this because under the Admiralty Act, the Vessel is treated as a separate juristic entity which can be sued without joining the owner of the said Vessel to the proceeding.
Bombay High Court
JUSTICE B. P. COLABAWALLA
Angre Port Private Ltd. Vs. TAG 15 (IMO. 9705550) & Anr.
INTERIM APPLICATION(L) NO. 112 OF 2021
3rd January 2022
Citation: 2022 NearLaw (BombayHC) Online 9
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