TMI Blog2021 (7) TMI 1234X X X X Extracts X X X X X X X X Extracts X X X X ..... ered and the matter has been disposed off. The clarification Application which has been filed is just not for clarification/modification/recall of the Judgment passed by us but for review of the Judgment resulting reopening/rehearing the issue and such practice may not be done for want of provisions to review in IBC - the averments made in the clarification application do not have any merit - application dismissed. - I.A No. 915 of 2021 In Company Appeal (AT) (Ins) No. 654 of 2020 - - - Dated:- 28-7-2021 - [Justice Jarat Kumar Jain] Member (Judicial), [Justice Anant Bijay Singh] Member (Judicial) And [Dr. Ashok Kumar Mishra] Member (Technical) For the Applicant : Mr. Sudhir K. Makkar, Sr. Advocate and Mr. Vikram Nankani Sr. Advocate with Mr. Bharat Makkar, Mr. Vatsala Rai Ms. Anindita Roy Chowdhury, Ms. Soumya Gupta and Ms. Yogita Rahtore, Advocates for Vistra ITCL, For Applicant. For the Respondent : Mr. Dinesh Pednekar, Mr. Arpan Behl, Mr.Chanakya Keswani, Advocates for R.-1, Deccan Value. Mr. Abhinav Vasisht, Sr. Advocate with Ms. Misha, Mr. Siddhant Kant, Ms. Prabh Simran kaur, Mr. Anoop Rawat, Mr. Sagar Dhawan, Mr. Vimal Asthana, Advocates for Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in view of the fact that the Applicant, who holds a valid charge in the nature of a mortgage over the land admeasuring 21.11 acres, located at village Malpura, Industrial Area, Sector 9/10, Dharuhera, District Rewari, Haryana (Ace Complex Land/Subject Property), had already issued a notice under Section 13(2) of the SARFAESI Act to take possession of the Subject Property and alienation of the Subject Property after issuance of such notice would be in teeth of Section 13(13) of the SARFAESI Act. Consequently, approval of the resolution plan which factored in the creation of long term lease in favour of the Corporate Debtor, would have the effect of legitimizing an 21.01.2020 (SAREAESI Notice). 5. It was contended by the Applicant that the execution and registration of the Lease Deed dated 28.01.2020 (2020 Lease Deed) for a period of 20 years, being subsequent to issuance of the SARFAESI Notice was unlawful as being violative of Section 13(13) and the spirit of SARFAESI Act, 2002. 6. It was further contended by the Applicant that Section 65A of the Transfer of Property Act, 1882 (TPA) created an express bar and limited the right of the mortgagor to put the property on lease c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dity of the 2020 Lease Deed. 11. From the perusal of the order dated 19.03.2021 passed by this Tribunal shows that this Tribunal directed that it will here Mr. Sudhir K. Makkar, Sr. Advocate seeking impleadment of M/s Vistra ITCL (India) Limited and the matter was posted on 22.03.2021, on that day Mr. Sudhir K Makkar, Sr. Advocate on behalf of the Applicant was heard on I.A. No. 2072/2020, the matter was again listed on 23.03.2021, thereafter, again on 24.03.2021 on that day detailed argument was advanced by Mr. Sudhir K Makkar, Sr. Advocate and the judgment was reserved. 12. Learned Sr. Counsel for the Applicant further submitted that the judgment inter-alia holds that since the present appeal lacks merit, Vistra cannot be permitted to introduce a case beyond the scope of examination of legality of the Resolution Plan . . 13. Learned Sr. Counsel for the Applicant further submitted that the aforesaid observation, it is clear that this Hon'ble Tribunal while passing the Order has only examined the legality of the Resolution Plan and the order passed by the Adjudicating Authority and has not delved into the question of validity of the 2020 Lease Deed. Therefore, any obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se has been entered into in accordance with law for renewing the existing lease hold rights. is contrary and incongruous to the intent of Order and hence is not be relied upon by the parties; b) In the alternative this Hon ble Tribunal may clarify that the said observations 2020 lease has been entered into in accordance with law for renewing the existing lease hold rights. shall not be read as the operative part of the order and the appeal having been dismissed, the order passed by the Adjudicating Authority has not been modified or varied in any manner. 19. Learned Sr. Counsel for the Applicant further submitted that this Application bearing I.A. No. 915 of 2021 for clarification is under Rule 31 read with Rule 11 of the NCLAT Rules, 2016. The Rule 11 and Rule 31 of NCLAT Rules, 2016, read as under: 11. Inherent powers - Noting in these rules shall be deemed to limit or otherwise affect the inherent powers of the Appellate Tribunal to make such orders or give such directions as may be necessary for meeting the ends of justice or to prevent abuse of the process of the Appellate Tribunal. 31. Interlocutory applications- Every interlocutory application for stay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This procedure is meant to save the time of Court and to preclude frivolous review petitions being filed and heard in open Court. How-ever, with review a view to avoid this procedure of 'no hearing', we find that sometimes applications are filed for 'clarification', 'modification' or 'recall' etc. not because any such clarification, modification is indeed necessary but because the applicant in reality wants a review and also wants a hearing, thus avoiding listing of the same in Chambers by way of circulation. Such applications, if they are in substance review applications, deserve to be rejected straightway inasmuch as the attempt is obviously to by pass Order XL Rule 3 relating to circulation of the application in Chambers for consideration without oral hearing. By describing an application as one for 'clarification' or 'modification', - though it is really one of review - a party cannot be permitted to Circumvent or by-pass the circulation procedure and indirectly obtain a hearing in the open Court. What cannot be done directly cannot be permitted to be done indirectly. (See in this connection a detailed order of the then Registra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rehension is created in the mind of Vistra that in absence of Vistra as party Respondent actual facts including the rationale behind the passing of impugned order qua the Vistra s secured asset, i.e. subject property would be placed before this Appellate Tribunal. 20. We have given our anxious consideration to the submissions, oral and written made by learned Counsel for the parties and those seeking impleadment and intervention. We have also gone through the record. 21. Appellant is the Successful Resolution Applicant whose Resolution Plan in respect of Corporate Debtor Amtek Auto Limited came to be approved by the Committee of Creditors by a majority of 70.07% votes in its meeting held on 7th February, 2020. The Resolution Professional filed IA No.225/2020 under Section 30(6) read with 31(1) of I B Code for approval of Resolution Plan. Same was heard along with other IAs. Meanwhile, IA in Civil Appeal No.6707/2019 filed by the Appellant before Hon ble Apex Court seeking withdrawal of its offer (Resolution Plan) came to be dismissed vide order dated 18th June, 2020. The Hon ble Apex Court, while rejecting the prayer for withdrawal of the offer, warned the Appellant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2017. IRP was confirmed as RP in the first meeting of COC. CIRP period was extended by 90 days. COC in its meeting held on 2nd April, 2018 approved Resolution Plan of LHG, which was placed by the RP for approval before AA, who allowed CA No.114/2018 approving the Resolution Plan submitted by RP. CP No.112/ 2018 also came to be disposed of while CA No.140 of 2018 filed by the Appellant herein came to be dismissed in terms of the same order. Subsequently, all Financial Creditors of CD filed CA No.567 of 2018 through Union Bank of India urging the AA to declare that the Resolution Applicant M/s LHG has knowingly contravened the terms and failed to implement the Resolution Plan. This came to be disposed off by holding that the Resolution Plan submitted by LHG was not capable of implementation due to default in adhering to the payment schedule. COC was restored for considering the plan of Appellant. Sometime was excluded from CIRP. CA No.601/2018 filed by LHG alleging vitiation of CIRP of the CD on account of fraud etc. came to be dismissed in terms of the same order. In Appeal, this Appellate Tribunal ordered for liquidation of CD. The order of this Appellate Tribunal dated 16th Augu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of Ace Complex Land is said to have expired on 31st March, 2019. The submission on behalf of Appellant is that for maintaining going concern status of Corporate Debtor unhindered access of CD to this land is crucial. Thus, this condition stated to be condition precedent of the execution of lease on acceptable terms is said to be vital and included in the Resolution Plan but RP executed the said lease on 28th January, 2020 without obtaining prior written consent of Vistra. Thus, the approval of the Resolution Plan is said to be without complying with the requirement of obtaining prior written consent of Vistra in respect of execution of the lease of Ace Complex Land and without obtaining approval of CCI. It is contended on behalf of Appellant that the AA failed to satisfy itself whether the Resolution Plan was compliant as regards vital conditions and whether it had provisions for its effective implementation. 24. This is seriously contested by the Respondents, it being pointed out that the COC and the Appellant had mutually agreed for inclusion of execution of long term lease of 20 years with respect to the Ace Complex Land on Acceptable Terms as a condition precedent to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmination accruing to the lessor as long as lease rentals are paid and right of first refusal accruing to the Resolution Applicant in case of sale of Ace Complex Land. This is covered under the definition of Acceptable Terms at page 487 of Vol. 3 of Appeal. Appellant is required to take appropriate steps towards negotiating with Vistra/ creditor for obtaining their no objection in terms of the impugned order. The Appellant can demonstrate that the 2020 lease has not been extinguished and all rights enjoyed by Vistra/ creditors are intact as against its borrowers as well as Gateway. The 2020 lease ensures continuance of revenue for Gateway to service the debt of creditors and there is no compromise on the lease rentals stipulated to be paid in terms thereof and that the 2020 lease must be continued as the piece of land is otherwise of no use. 2020 lease has been entered into in accordance with law for renewing the existing lease hold rights. It ensures a long time lease for the constructed area of Ace Complex Land from where the Corporate Debtor is operating its manufacturing activities. In so far as the remaining land is concerned, the agreement provides for lease of the said land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary steps for implementation of all provisions of the Resolution Plan but has failed to do so. Thereby contravening terms of the Resolution Plan and providing justification for CoC to invoke PBG. The Guarantor Bank is bound to honour the written demand placed on it by the CoC for breach of any condition which does not brook any interference. Thus viewed, the CoC has rightly invoked the PBG which is beyond the pale of challenge. 26. Vistra was not a party to proceedings arising out of application filed by the Resolution Professional for approval of Appellant s Resolution Plan. Admittedly, Vistra has not filed an appeal against the impugned order. It had filed CA No. 62 of 2020 and CA No. 237 of 2020 before the AA which came to be disposed off in terms of the impugned order. Admittedly, no appeal has been filed in respect of order passed in CA No. 237 of 2020. In the given circumstances, it cannot be permitted to seek impleadment as a necessary party in these appeal proceedings. Vistra is a mortgagee with Ace Complex Land mortgaged in its favour by Gateway. The Adjudicating Authority has taken note of the 2020 lease and approved the Resolution Plan submitted by Appellant which p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be shareholder of the Corporate Debtor, assailed the order of admission primarily on the ground the winding up petition against the Corporate Debtor had already been admitted by Bombay High Court on 5th October, 2016 and the Official Liquidator has been appointed as Provisional Liquidator w.e.f. 15th November, 2017. According to Appellant, the Provisional Liquidator had taken over the assets and properties of the Corporate Debtor on 17th April, 2018 and also carried out boundary determination on 1st May, 2018. The Appellant further submitted that application under Section 7 filed by 'India Bulls Housing Finance Ltd.' against the Corporate Debtor had already been rejected by the Adjudicating Authority on 18th May, 2018 and the order of rejection had been challenged in appeal before Hon'ble Apex Court. It was submitted before this Appellate Tribunal that applications under Section 7 9 could not be filed and entertained after admission of the winding up petition. This Appellate Tribunal while noticing that similar issue had fallen for consideration before Hon'ble Apex Court in 'Forech India Ltd. Vs. Edelweiss Asset Reconstruction Company Ltd.' reported in 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open to correct the conclusion if the same is not compatible with the finding recorded on the issues raised. We accordingly decline to entertain any plea in regard to the merits of the matter involved at the bottom of the appeal and confine ourselves to the interpretation of the findings recorded and the conclusions derived therefrom as regards fate of the application under Section 7 of I B Code filed by the Financial Creditor and the disposal of appeal. 24. Viewed thus, the instant I.A. No. 915 of 2021 filed on behalf of the Applicant has tried to persue this Tribunal to revisit the finding observed in the judgment in question which is not permissible in NCLAT Rules, 2016 and the Rule 11 under which this Application has been filed is not applicable, therefore, the Application for clarification is not maintainable. 25. Any Application under Rule 11 is to be filed in scheduled Form-2 of the NCLAT Rules, 2016 which categorically shows that this Rule only deals with the I.A. in the pending matter(s). The Form of NCLAT-2 under Rule 31 is hereunder: FORM NCLAT-2 [See Rule 31] INTERLOCUTORY APPLICATION IN THE NATIONAL COMPANY LAW APPELLATE TRIBUNAL IA N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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