JUDGMENT : N. NAGARESH, J. 1. All these three writ petitions are filed challenging an interim order dated 01.02.2021 in MA/76/KOB/2020 in MA/30/KOB/2019 in IA/71/KOB/2019 in IBA/240/2019 dated 01.02.2021 of the National Company Law Tribunal, Kochi Bench. 2. The 1st respondent-Union Bank of India extended various credit facilities to a Company named M/s. Raihan Healthcare Private Limited. The petitioners in the three writ petitions stood as guarantors and mortgaged their properties to the Bank as security for the advances to the Company. The first petitioner in W.P. (C) No. 3872/2021 was Chairman and Managing Director of the Company. The Bank filed O.A. No. 474/2018 before the Debt Recovery Tribunal-II, Ernakulam to recover dues from the Company. 3. While the O.A. was pending, the Bank invoked Section 7 of the Insolvency and Bankruptcy Code, 2016 (IBC) and filed application IBA/240/2019 before the National Company Law Tribunal (NCLT) for initiating Corporate Insolvency Resolution Process (CIRP) against the Company. The application was admitted by the NCLT on 20.03.2019, thereby initiating CIRP. As an Insolvency Resolution Plan could not be formulated, the NCLT appointed the 2nd respondent as Liquidator of the Company (Corporate Debtor) on 17.01.2020, to carry out the liquidation process. 4. The 2nd respondent-Liquidator reported to the Tribunal that land area of 100.16 Ares mortgaged to the Bank is leasehold land of the promoters/Directors of the Corporate Debtors for a period of 99 years for constructions of a hospital. The lease deed provided for mortgage of the leasehold land for obtaining loan. The land was mortgaged to the Bank and loan was availed. Another 16.55 Ares of land inside the hospital premises owned by Promoters/Directors was used for hospital utility services without signing any lease deed (implied lease) and was mortgaged to the Meenachil Urban Cooperative Bank. Major part of the hospital and its utilities are constructed on leasehold land. 5. The Liquidator filed M.A. No. 76/KOB/2020 seeking to direct both the Banks to hand over physical possession of the mortgaged leasehold land of the Corporate Debtor into the Liquidation Estate of the Corporate Debtor. Both the Banks expressed their willingness to release the property on condition that their admitted claims shall be released under priority. 5. The Liquidator filed M.A. No. 76/KOB/2020 seeking to direct both the Banks to hand over physical possession of the mortgaged leasehold land of the Corporate Debtor into the Liquidation Estate of the Corporate Debtor. Both the Banks expressed their willingness to release the property on condition that their admitted claims shall be released under priority. The tribunal considered the M.A. No. 76/KOB/2020 in detail and on 01.02.2021, ordered as follows: “(i) Both respondents are directed to hand over the physical possession of the mortgaged leasehold land of the Corporate Debtor (both Express Lease and Implied Lease lands used by the Corporate Debtor) to the Applicant in order to use as the Liquidation Estate of the Corporate Debtor. (ii) The applicant is also allowed to add the mortgaged land (Express Lease-100.16 Ares and Implies Lease - 78.45 Ares) into the Liquidation Estate of the Corporate Debtor. (iii) The Liquidator is directed to strictly follow the procedures to take over the property in question, as per the Regulations. (iv) This order should be implemented immediately on receipt of copy of this order, at any rate within 2 weeks from the date of receipt of the order.” The petitioners are before this Court aggrieved by the said order and directions. 6. The petitioners in W.P. (C) No. 4672/2021 stated that they have filed Ext.P1 Intervention Application IA No. 63/2020 in the IBA/240/IB/2019 on 16.03.2020 under Section 60(5) of the Insolvency and Bankruptcy Code 2016 contending that the lease executed by the petitioners in favour of the Corporate Debtor is invalid in view of Section 65A of the Transfer of Property Act and therefore the mortgage of the land in favour of the Bank is also invalid. 7. The learned counsel for the petitioners argued that the Liquidator filed the application invoking Sections 36 and 60(5) of the Insolvency and Bankruptcy Code 2016. Section 36(4)(c) provides that personal assets of a shareholder or the partner of a Corporate Debtor shall not form part of the Liquidation Estate. The assets of the petitioners cannot be treated as assets of the Corporate Debtor. Assets of the petitioner would not automatically form the assets of the Corporate Debtor. As the application filed by the Liquidator was to transfer the assets of the petitioners, there is an inherent lack of jurisdiction for the Tribunal to proceed and pass an order therein. 8. Assets of the petitioner would not automatically form the assets of the Corporate Debtor. As the application filed by the Liquidator was to transfer the assets of the petitioners, there is an inherent lack of jurisdiction for the Tribunal to proceed and pass an order therein. 8. The learned counsel for the petitioner further pointed out that Section 60(2) of the Insolvency and Bankruptcy Code 2016 provides that when an insolvency proceeding is pending against the Corporate Debtor, insolvency proceedings against personal guarantor shall be filed before the NCLT. The Government has framed IBBI (Bankruptcy process for Personal Guarantors to Corporate Debtors) Regulations, 2019. In the absence of proceedings against the petitioners under the Regulations, 2019 the Tribunal could not have entertained the application filed by the Liquidator. 9. The counsel for the petitioner further urged that the petitioners have a right of redemption in respect of their mortgaged property, under Section 60 of the Transfer of Property Act, 1882. In passing the impugned order, the Tribunal transgressed into the realm of property law. If the petitioners’ properties are added to the Liquidation Estate, those properties will be answerable to other dues also, of the Corporate Debtor. The petitioners have stood as guarantors to the Bank only for the advances taken by the Corporate Debtor. Their properties cannot be appropriated for any other dues of the Corporate Debtor. 10. The Liquidator has committed a fraud by obtaining order from the Tribunal against the interests of the petitioners, without arraying the petitioners as respondents, contended the learned counsel. The Tribunal also did not adhere to Section 424 of the Companies Act, 2013 and Regulation 51 of NCLT Rules, 2016 which mandate compliance of the principles of natural justice, contended the learned counsel for the petitioner. 11. Learned Senior Counsel appearing at the instance of Standing Counsel for the 1st respondent-Bank pointed out that in view of Section 35 of the Insolvency and Bankruptcy Code 2016, the liquidator can take possession of the property in question and the scheme of the IBC does not envisage issuance of notice to the petitioner. Therefore, there is no necessity to hear the Directors of the Company before takeover of its assets. The learned Senior Counsel pointed out that the resolution professional, under Section 25 (1) has a duty to protect continued business of the Corporate Debtor. 12. Therefore, there is no necessity to hear the Directors of the Company before takeover of its assets. The learned Senior Counsel pointed out that the resolution professional, under Section 25 (1) has a duty to protect continued business of the Corporate Debtor. 12. The IBC contemplates a public announcement of liquidation and therefore individual notices to affected parties are not required. Decisions dealing with the assets of the Corporate Debtor are taken by the liquidator in consultation with all the stakeholders. In the present case, only the possession of mortgage the property is transferred from the bank to the liquidator. Such transfer is required for continued business operations or for effective liquidation of the Corporate Debtor. The IBC provides for an effective alternate remedy of filing appeal against the orders of the Tribunal by invoking Section 61. When an appeal is permitted under Section 61 of the IBC, this Court should not interfere with the liquidation proceedings. The learned Senior Counsel relied on the judgment of the Apex Court in Sulochana Gupta and Another vs. RBG Enterprises Private Limited. 13. The learned counsel representing the Liquidator opposed the writ petition and urged that the writ petition is not maintainable. Citing the judgment of the Apex Court in Gujarat Urja Vikas Nigam Limited vs. Amit Gupta and Others, the learned counsel argued that even if the case involves an element of public law, the issues raised by the petitioners can be decided by NCLT and NCLAT and not by this Court in exercise of the powers under Article 226. The learned counsel stated that in view of Section 238 of the IBC, the provisions of the Code has overriding effect over all other laws in force and in any instrument having the force of law. The learned counsel relied on the judgments of the Hon’ble Madras High Court in WP Nos. 29084-29085 of 2017 and in CRP No. 3758/2019 to urge his point. 14. The learned counsel who appeared for the 2nd respondent-Meenachil East Urban Co-operative Bank Limited, argued that the Directors of the Company have obtained loans in the name of the Company and constructed buildings utilising the loans, in their private property/land which is a fraudulent conduct. Their private properties are developed using corporate funds and hence this is a fit case for the liquidator to proceed under Section 66 of the IBC. 15. Their private properties are developed using corporate funds and hence this is a fit case for the liquidator to proceed under Section 66 of the IBC. 15. I have heard the learned counsel for the petitioners, learned counsel appearing for the Banks and learned counsel appearing for the Liquidator. 16. The issues arising for consideration in these writ petitions are whether the writ petitioners are maintainable in view of availability of alternate remedy; whether the NCLT can pass orders in respect of the properties of guarantors to a Corporate Debtor without initiating proceedings against the personal guarantors and whether properties of guarantors to a Corporate Debtor can be transferred by NCLT to the Liquidation Estate of a Corporate Debtor without notice to and without hearing the guarantors. The further issue is whether when the petitioners as mortgagers have right to redemption under the Transfer of Property Act, 1882 whether such property can be included by the Tribunal in the Liquidation Estate of a Corporate Debtor making such properties answerable to other liabilities of the Corporate Debtor as well. 17. If an efficacious alternate statutory remedy is available to the petitioner to challenge the impugned order of the Tribunal, this Court shall not ordinarily entertain a writ petition. The fact that an appeal under Section 61 of the IBC is available to the petitioner, is not controverted by the petitioners. The argument of the petitioners is that availability of appellate remedy is no bar to file a writ petition in the circumstances of this case in view of the judgment of the Apex Court in Commissioner of Income Tax and Others vs. Chhabil Dass Agarwal, (2014) 1 SCC 603 and of this Court in Sulochana Gupta and Another vs. RBG Enterprises Private Limited. 18. The issue of maintainability of writ petitions against orders of NCLT passed under IBC 2016, is no more res integra. In Embassy Property Developments Pvt. Ltd. vs. State of Karnataka, (2020) 13 SCC 308 the Hon’ble Apex Court considered the distinction between lack of jurisdiction of a Tribunal and a wrongful exercise of available jurisdiction and held that when Article 226 is sought to be invoked bypassing a statutory alternative remedy, the High Court should certainly take into account the distinction between the lack of jurisdiction and wrongful exercise the available jurisdiction. 19. 19. In Gujarat Urja Vikas Nigam Ltd. (supra) the Apex Court considered the legality of the order of NCLT in staying the termination by Gujarat Urja Vikas Nigam Ltd. of its power purchase agreement with the Corporate Debtor. The Apex Court noted that the NCLT has the sole jurisdiction to decide a dispute that arises from or relates to the insolvency of a Corporate Debtor and observed as follows: “71. The institutional framework under the IBC contemplated the establishment of a single forum to deal with matters of insolvency, which were distributed earlier across multiple fora. In the absence of a court exercising exclusive jurisdiction over matters relating to insolvency, the corporate debtor would have to file and/or defend multiple proceedings in different fora. These proceedings may cause undue delay in the insolvency resolution process due to multiple proceedings in trial courts and courts of appeal. A delay in completion of the insolvency proceedings would diminish the value of the debtor's assets and hamper the prospects of a successful reorganization or liquidation. For the success of an insolvency regime, it is necessary that insolvency proceedings are dealt with in a timely, effective and efficient manner. Pursuing this theme in Innoventive (supra) this court observed that “one of the important objectives of the Code is to bring the insolvency law in India under a single unified umbrella with the object of speeding up of the insolvency process.” The principle was reiterated in Arceior Mittal (supra) where this court held that “the non-obstante Clause in Section 60(5) is designed for a different purpose : to ensure that the NCLT alone has jurisdiction when it comes to applications and proceedings by or against a corporate debtor convered by the Code, making it clear that no other forum has jurisdiction to entertain or dispose of such applications or proceedings.” Therefore, considering the text of Section 60(5)(c) and the interpretation of similar provisions in other insolvency related statutes, NCLT has jurisdiction to adjudicate disputes, which arise solely from or which relate to the insolvency of the Corporate Debtor. However, in doing do, we issue a note of caution to the NCLT and NCLAT to ensure that they do not usurp the legitimate jurisdiction of other courts, tribunals and fora when the dispute is one which does not arise solely from or relate to the insolvency of the Corporate Debtor. However, in doing do, we issue a note of caution to the NCLT and NCLAT to ensure that they do not usurp the legitimate jurisdiction of other courts, tribunals and fora when the dispute is one which does not arise solely from or relate to the insolvency of the Corporate Debtor. The nexus with the insolvency of the Corporate Debtor must exist.” The Apex Court held that the writ petitioner can approach the NCLT for adjudication of disputes that are related to the insolvency resolution process. However, for adjudication of disputes that arise dehors the insolvency of the Corporate Debtor the writ petitioner must approach the relevant Competent Authority. In the facts of that case, the Apex Court held that the NCLT was justified in exercising its jurisdiction since the termination order was issued by Gujarat Urja Vikas Nigam Ltd. only on account of the Corporate Insolvency Resolution Process being initiated against the Corporate Debtor. 20. The Hon’ble Apex Court considered the issue in Kalpraj Dharamshi and Another vs. Kotak Investment Advisors Ltd. and Another. The Hon’ble Apex Court held that non-exercise of jurisdiction by the High Court under 226 of the Constitution is not a hard and fast rule. The Apex Court held as follows: “59. By now, it is settled principle of law, that non-exercise of jurisdiction by the High Court under Article 226 of the Constitution is not a hard and fast rule, but a rule of self-restraint. As early as in 1969, in the case of Babu Ram Prakash Chandra Maheshwari (supra), this Court observed thus: “It is a well-established proposition of law that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ. But, as observed by this Court in Rashid Ahmed vs. The Municipal Board, Kairana, 1950 SCR 566 “the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs” and where such a remedy exists it will be sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds therefore. But it should be remembered that the rule of exhaustion of statutory remedies before a writ is granted is a rule of self imposed limitation, a rule of policy and discretion rather than a rule of law and the court may therefore in exceptional cases issue a writ such as a writ of certiorari notwithstanding the fact that the statutory remedies have not been exhausted.” 60. This Court further laid down two well-recognised exceptions to the doctrine with regard to the exhaustion of statutory remedies, which reads thus: “There are at least two well-recognized exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well-settled that where proceedings are taken before a Tribunal under a provision of law, which is ultra-vires, it is open to a party aggrieved thereby to move the High Court under Article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course. [See the decisions of this Court in Carl Still G.M.B.H. vs. State of Bihar, AIR 1961 SC 1615 and The Bengal Immunity Co. Ltd. vs. State of Bihar, (1955) 2 SCR 603 ]. In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principles of natural justice [See State of Uttar Pradesh vs. Mohammad Nooh, 1958 SCR 595 ].” 61. It has been clearly held, that when the proceedings invoked before a statutory authority are de hors the jurisdiction or when they are in breach of principles of natural justice, the party would be entitled to invoke the jurisdiction of the High Court under Article 226 of the Constitution.” In Kamal K. Singh vs. Union of India, on the question of availability of alternate remedy, the Hon'ble Bombay High Court held as follows: “38. Mr. Kadam's arguments overlook the fact that if these principles summarised above are attracted, the writ cannot be refused. The writ cannot be refused only because the party resisting the writ petition urges that there are alternate and equally efficacious remedies available to the petitioner approaching this court seeking a writ of certiorari to challenge the adverse order. As has been succinctly clarified by the Hon'ble Supreme Court that this writ of certiorari goes to a court. The writ cannot be refused only because the party resisting the writ petition urges that there are alternate and equally efficacious remedies available to the petitioner approaching this court seeking a writ of certiorari to challenge the adverse order. As has been succinctly clarified by the Hon'ble Supreme Court that this writ of certiorari goes to a court. It may be issued at the request of parties, but it is not a writ which can be claimed by the parties. It is a writ which is directed or addressed to the court and the High Court can always issue it once it is satisfied that the orders impugned before it and challenged on the grounds mentioned above occasion a failure of justice. Thus, if the orders of the court or tribunal subordinate to this court result or occasion a failure of justice, then, this writ of certiorari can always be issued. There is no question of then refusing it merely because the opponent or opposite party says that the person or the party invoking this writ has an alternate and equally efficacious remedy. That means everything that the court or the tribunal has done can either be condoned or overlooked by us and thereafter the only remedy available to parties is by way of an appeal to correct the decision. If the decision itself has been rendered in utter breach of the rules of procedure or in violation of the principles of natural justice occasioning or resulting in failure of justice, even then, the High Court need not or cannot step in. If that is how we approach this writ, possibly, we would frustrate and defeat the very object and purpose of issuing it. We have to ensure that the court or the tribunal below follows the settled procedure and norms devised while rendering justice to parties. The orders and decisions must be in accord therewith. The orders and decision should not result in failure of justice. The bounds or limits of jurisdiction are known to these tribunals of courts subordinate to High Court. If the High Court is endowed with the power to issue this writ, then, the purpose of such endowment cannot be overlooked. The orders and decisions must be in accord therewith. The orders and decision should not result in failure of justice. The bounds or limits of jurisdiction are known to these tribunals of courts subordinate to High Court. If the High Court is endowed with the power to issue this writ, then, the purpose of such endowment cannot be overlooked. It is but the duty of the High Court to ensure that the limits are not crossed or that the jurisdiction is not exercised in a manner contrary to the settled cannons of equality, fairness and justice. The very foundation of justice is sanctity of court proceedings and the records. If that is totally lost, then, the High Court should not be a mute spectator. It must step in.” In this case the basic challenge is against the order of the Tribunal permitting the Liquidator to add the mortgaged land of the petitioners into the Liquidation Estate of the Corporate Debtor. Therefore, if the Tribunal has no power to direct addition of properties of the petitioners who are guarantors, to the Liquidation Estate, this Court will be justified in entertaining the writ petition, in view of the judgment of the Apex Court in Embassy Property (supra). 21. The Bank has security interests in the properties involved, under two heads. The properties are held by the Corporate Debtor under a lease agreement, which agreement permits the Corporate Debtor to mortgage their leasehold rights. The Corporate Debtor had mortgaged their leasehold rights to the Bank for raising funds. Secondly, the petitioners have stood as sureties to the loan transaction of the Corporate Debtor and their title documents in respect of the properties are deposited with the Bank. In view of Section 34 of the IBC, all powers of the Board of Directors and Key Managerial Personnel of the Corporate Debtor including the power to deal with the leasehold rights held by the Corporate Debtor vests with the Liquidator. The Liquidator can very well include the leasehold rights in the Liquidation Estate in view of Section 36 (3) of the IBC. But the question will be whether ownership rights of the properties which are still with the petitioners, though stands mortgaged to the Bank, can be included in the Liquidation Estate and that too without hearing the petitioners on the issue. 22. But the question will be whether ownership rights of the properties which are still with the petitioners, though stands mortgaged to the Bank, can be included in the Liquidation Estate and that too without hearing the petitioners on the issue. 22. Section 36 of the IBC dealing with the Liquidation Estate reads as follows: “36.....(1) For the purposes of liquidation, the liquidator shall form an estate of the assets mentioned in sub-section (3), which will be called the liquidation estate in relation to the corporate debtor. (2) The liquidator shall hold the liquidation estate as a fiduciary for the benefit of all the creditors. (3) Subject to sub-section (4), the liquidation estate shall comprise all liquidation estate assets which shall include the following: (a) any assets over which the corporate debtor has ownership rights, including all rights and interests therein as evidenced in the balance sheet of the corporate debtor or an information utility or records in the registry or any depository recording securities of the corporate debtor or by any other means as may be specified by the Board, including shares held in any subsidiary of the corporate debtor. (b) assets that may or may not be in possession of the corporate debtor including but not limited to encumbered assets. (c) tangible assets, whether movable or immovable. (d) intangible assets including but not limited to intellectual property, securities (including shares held in a subsidiary of the corporate debtor) and financial instruments, insurance policies, contractual rights. (e) assets subject to the determination of ownership by the court or authority. (f) any assets or their value recovered through proceedings for avoidance of transactions in accordance with this Chapter. (g) any asset of the corporate debtor in respect of which a secured creditor has relinquished security interest. (h) any other property belonging to or vested in the corporate debtor at the insolvency commencement date. (i) all proceeds of liquidation as and when they are realised. (4) The following shall not be included in the liquidation estate assets and shall not be used for recovery in the liquidation: (a) assets owned by a third party which are in possession of the corporate debtor, including: (i) assets held in trust for any third party. (ii) bailment contracts. (iii) all sums due to any workman or employee from the provident fund, the pension fund and the gratuity fund. (ii) bailment contracts. (iii) all sums due to any workman or employee from the provident fund, the pension fund and the gratuity fund. (iv) other contractual arrangements which do not stipulate transfer of title but only use of the assets. (v) such other assets as may be notified by the Central Government in consultation with any financial sector regulator. (b) assets in security collateral held by financial services providers and are subject to netting and set-off in multi-lateral trading or clearing transactions. (c) personal assets of any shareholder or partner of a corporate debtor as the case may be provided such assets are not held on account of avoidance transactions that may be avoided under this Chapter. (d) assets of any Indian or foreign subsidiary of the corporate debtor. (e) any other assets as may be specified by the Board, including assets which could be subject to set-off on account of mutual dealings between the corporate debtor and any creditor.” In view of Sub section 4 of Section 36, assets owned by third parties and personal assets of any shareholder or partner of a Corporate Debtor cannot be included in the Liquidation Estate. 23. When assets owned by third parties, share holders and partners are expressly excluded from Liquidation Estate, whether the Tribunal can permit the Liquidator to include ownership rights of the petitioners in the Liquidation Estate? The impugned order of the Tribunal is to include the “mortgaged properties” in the Liquidation Estate. In the aforementioned context, there exists a lack of clarity in the impugned order as to whether what is directed to be included in the Liquidation Estate is leasehold rights of the Corporate Debtor or the ownership rights of the petitioners or both. The lack of clarity is in respect of a matter affecting the constitutional right of the petitioners under Article 300A of the Constitution. The Tribunal has the power to decide the legal issue whether the ownership rights of the petitioners can be included in the Liquidation Estate, if the petitioners are Directors/Promoters of the Company/Corporate Debtor as described by the Tribunal in the order impugned. Therefore, this Court is of the considered opinion that the Tribunal shall reconsider the matter in the proper perspective, afresh. 24. Therefore, this Court is of the considered opinion that the Tribunal shall reconsider the matter in the proper perspective, afresh. 24. The petitioners would state that they are entitled to notice and to be heard before the Tribunal takes any decision to include their property in the Liquidation Estate and that the impugned order of the Tribunal is violative of the principles of natural justice. The learned Counsel for the respondents on the other hand would urge that IBC does not contemplate issuance of notice to the petitioners and since this Court and the Apex Court have held that the IBC is a self contained Code, no notice need be issued to the writ petitioners, in respect of M.A. No. 76/KOB/2020 in which the impugned order is passed by the Tribunal. 25. The Rule 51 of the National Company Law Tribunal Rules, 2016 provides that the Tribunal may regulate its own procedure in accordance with the rules of natural justice and equity, for the purpose of discharging its functions under the Act. Since the petitioners in W.P. (C) No. 4672/2021 are already before the Tribunal filing Intervention application, it would be only just, proper and equitable that the Tribunal hear the petitioners in these writ petitions also before taking a decision afresh. 26. In the circumstances, the impugned order in MA No. 76/KOB/2020 dated 01.02.2021 of the National Company Law Tribunal, Kochi Bench, Kerala [Ext.P4 in W.P. (C) No. 3864/2021] is set aside to the extent it allows the Liquidator to add the mortgaged land of the petitioners into the Liquidation Estate. The Tribunal is directed to pass orders afresh on the issue of inclusion of the said land in the Liquidation Estate, in the light of the observations made herein above, after giving an opportunity of hearing to the petitioners, as expeditiously as possible. It is made clear that this judgment shall not be taken as one expressing any opinion on merits as to the inclusion of the properties of the petitioners in the Liquidation Estate.