TMI Blog2021 (12) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... tached at pp. 258-261 of Appeal paperbook, Vol. II), even if we consider this to be a formal notice under the leave and licence agreement and Successful Resolution Applicant to be responsible as a signing authority in the said agreement, more than 7 months have passed since the sending of this notice. Even then, as per clause 12 (b) of the licence agreement, unilateral termination of the agreement has been enforced by the Successful Resolution Applicant. It is also worth noting that the Appellant continued to enjoy the said premises after the approval of the Resolution Plan by the Adjudicating Authority and also continued to pay the licence fee as well as water and electricity charges. He was well aware of the status of the said premises as contained in the successful resolution plan and was asked to vacate the premises vide e-mail of Sify Technologies dated 30.11.2020. He has enjoyed the premises for over one year now from the date he was sent mail on 30.11.2020. Therefore, it would not be correct for the appellant to now say at this time and stage that his rights under the Licence Agreement should be protected, more so as clause 12(b) of the Licence Agreement does provide the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porate Debtor. The Appellant has challenged the Impugned Order to the extent that it affects the Appellant s rights regarding termination of the existing Leave and Licence Agreement dated 16.6.2017 (hereinafter called Licence Agreement , attached at pp. 194-212 of Appeal paperbook) with Respondent No. 1 and refund of the security deposit upon delivery of the premises and on the ground that the order has been passed without giving any notice or opportunity of hearing to the Appellant. 3. In brief, the facts of the case as stated and argued by the Appellant are that in terms of the Licence Agreement, Respondent No. 1 has agreed to the sub-lease the first floor of the building admeasuring approximately 21020 sq. ft. carpet area and 10 open car parking spaces located at R-847/2, TTC Industrial Area, MIDC, Rabale, Navi Mumbai-400071 to the Appellant for 5 years upto 23.8.2022. The Appellant has further stated that as per clause 3(b) of the Licence Agreement, entire five years period is lock-in period for Respondent No. 1 and Respondent No.1 was entitled to terminate the agreement only if there was a material breach of contract. He has claimed that since there was no breach of the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Respondent No. 2 through a letter dated 11.9.2019 about the Resolution Plan and its potential impact on its rights. He did not receive any reply, and sometime later, the Impugned Order was passed by the Adjudicating Authority on 23.6.2020. He has claimed that the Appellant was supplied with a copy of the Impugned Order on 25.7.2020 and again on 26.9.2020, even though Respondent No. 2 merely informed him of the impugned order and requested for details of lease, rent or other charges to be paid by the Appellant, without making any request to the Appellant to vacate the subject property. He has argued that Respondent No. 1 never objected to the Appellant occupying the said property and continued to raise monthly invoices under the Licence Agreement from November 2020 till March 2021 and the Appellant duly made payments towards the same. It was only through a termination notice dated 26.4.2021 sent by the Successful Resolution Applicant (Sify Technologies Ltd., which is Respondent No. 3) that the Appellant was called upon to vacate the said property by 31.5.2021, which has occasioned the filing of this appeal. 9. The Learned Counsel for Appellant has argued that the RP is required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation and, therefore, the appeal has been filed within limitation. 12. The Learned Counsel for Respondent No. 2 (former RP of the Corporate Debtor) has adverted to the judgment of Hon ble Supreme Court in the case of Jaypee Kensington Blvd. Apartments vs. NBCC (India) Limited Anr. [Civil Appeal No. 3395 of 2020], wherein the proposition that the commercial wisdom of Committee of Creditors (CoC) is not open to judicial review ordinarily, has been upheld. He has also claimed that the Appellant was aware of the fact that the Resolution Plan had been approved vide Impugned Order dated 23.6.2020, and hence he has decided to challenge it after a period of over 11 months, which should not be allowed. He has argued that the said resolution plan was approved by 70.05% votes in its favour in the CoC meeting and therefore, it is in accordance with commercial wisdom of CoC which cannot be questioned. He has also stated that while the Resolution Plan was under consideration of the CoC and the Adjudicating Authority, it could not have been shared with the third party due to corporate confidentiality reasons hence it did not share with the Appellant. He has referred to provisions in se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract as is stated in section 30 of IBC. 15. The Learned Counsel for Respondent No. 3 has also argued that the erstwhile promoter, who is an unsuccessful Resolution Applicant, had separately preferred appeal before the Hon ble NCLAT challenging the approval of Resolution Plan by the Adjudicating Authority which was dismissed vide judgment dated 14.3.2021. The Learned Counsel has further submitted that Respondent No. 3 has already invested over ₹ 70 crores in the last 11 months in the said property and has issued purchase orders worth ₹ 180 crores to several vendors. Thus it has commenced work as part of the implementation of the project in accordance with the approved Resolution Plan. He has also stated that Emerson Process Management India Pvt. Limited, which was occupying the 3rd floor has vacated the facility and delivered the premises in the month of March, 2021 and work has commenced on the third floor. Similarly, NRB Bearings Limited, which was occupying the second floor, is vacating the premises occupied by it and Respondent No. 3 has already started project work to operationalize project work for operationalizing the data center. 16. The Learned Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmal notice under the leave and licence agreement and Successful Resolution Applicant to be responsible as a signing authority in the said agreement, more than 7 months have passed since the sending of this notice. Even then, as per clause 12 (b) of the licence agreement, unilateral termination of the agreement has been enforced by the Successful Resolution Applicant. 19. We note that the Appellant exchanged communications/emails with the RP and later with the Successful Resolution Applicant -Sify Technologies Limited (Respondent No. 3) about his interest in continuing in the said premises but was informed very clearly vide e-mail dated 30.11.2020 that Sify has taken over the management of Print House (India) Pvt. Ltd. on 16.10.2020 and has informed to you we do not wish to continue the rental business to Print House (India) Pvt. Ltd., as we had proposed termination of all existing contracts under the Resolution Plan‟. In the same e-mail communication, the Successful Resolution Applicant mentioned that as informed to you over telephone, Sify is in need of the space occupied by PAR Formulations for establishing its data center. We appreciate your gesture and understanding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence Agreement have been duly terminated by resorting to the terms of Licence Agreement, we do not feel any need to go into the other issues as contravention of law in the formulation of the Resolution Plan as has been claimed by the Appellant. 24. We are conscious of the fact that the Appellant has set up a laboratory and carries out activities in relation to its business of production of oral, liquid and injectable medicines for itself and its affiliate companies in the said premises, and it may be difficult for it to shift its operations to another premise immediately. We are also aware that the two other licensees of the previous Corporate Debtor whose license agreements were also terminated under the Successful Resolution Plan, have vacated their premises and the Successful Resolution Applicant Sify Technologies Limited has invested a good amount of funds for renovation of the said premises. 25. In the situation as discussed above, we are of the view that the Appellant may be given time to shift its operation to another premises within two months from the date of this order. The Appellant will be liable to pay the licence fee, water and electricity charges to the Success ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
