9911796707
TMI Blog2022 (1) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Corporate Debtor M/s Shubhkamna Buildtech Pvt. Ltd 2. Brief facts of this case are that Shubhkamna Buildtech Pvt. Ltd. (Corporate Debtor) was incorporated in the year 2006 with its registered office at New Delhi. It is engaged, inter alia, in the business of real estate as a builder and developer of several real estate projects. Vide lease deed dated 04.04.2011 a plot No. GH-02A, Sector 01, Greater Noida, admeasuring 32,296 sq. mts. (the Site) was allotted to Corporate Debtor for a period of 90 years by Greater Noida Industrial Development Authority (GNIDA/R-2). Pursuant to the lease deed Corporate Debtor took possession of the site and commenced construction and development of its project, Shubhkamna City, as per the plans approved by GNIDA. The Corporate Debtor collected booking amounts against the flats from about 800 homebuyers and allotted the flats to them in Towers. Subsequently, on 27.09.2016 the Tripartite Registered Agreement was executed between Corporate Debtor, Arham Escon Pvt. Ltd. (R-1) and Greater Noida Authority (R-2) and a portion of the site i.e. 10,627.229 sq.mt. was sub-leased to Arham Escon for construction and development of its projects. 3. Concord In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the possession of the sub-leased portion of the site to the Applicant, which the Applicant may be allowed to include in the Information Memorandum for invitation of Resolution Plans as a leasehold property of the Corporate Debtor; (e) That the Respondent No.1 may be directed to file their claim with the Applicant in compliance with the provisions of the code; (f) That directions may be given regarding the priority of the claim of Respondent No.1 arising out of the fraud committed by the Corporate Debtor upon them; (g) Any other directions or order as this Hon'ble Tribunal may deem fit and proper. 8. The Respondents resisted the Application that relief claimed in the Application is beyond the jurisdiction of Adjudicating Authority however the same can be agitated before the Civil Court. Apart from this, Section 46 of IBC mandates that the transaction which is beyond two years cannot be looked into by the IRP/RP. The Sub-lease granted in favour of R-1 by a registered instrument, after paying lease rent to the lessor i.e. GNIDA (R-2). There is no element of fraud brought on record. The RP has not disclosed on what basis claiming the rights over sub-lease plot. RP has not file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Adjudicating Authority failed to consider that the look back period as provided under Section 46 of IBC is not applicable to the transactions executed with fraudulent intentions. 14. Ld. Adjudicating Authority has not considered that as per Section 60(5) (c) of IBC only the Adjudicating Authority has jurisdiction to decide any issue arising out of CIRP. Thus, the impugned order may be set aside and the Appeal be allowed. 15. Per contra Ld. Sr. Counsel for the Respondent No. 1 submitted that the association of home buyers have filed a Civil Suit against the Corporate Debtor where a factum of transfer of 10,627 sq. mts. in favour of R-1 was recognized. During the pendency of Civil Suit the settlement was arrived at between the members of association and the Corporate Debtor and in terms of settlement the Civil Court has decreed the suit. CIRP of the Corporate Debtor commenced after more than two years from the transfer of land had been effected in favour of R-1. For these reasons, the RP has no locus to file the Application against the R-1. 16. It is submitted that the portion of plot was transferred under a registered instrument (Tripartite Agreement) and the transfer was effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng third party interest over the five towers which have been built over plot No. GH02 Sector-1 Noida. 24. During the pendency of Suit, the matter was referred to mediation centre. The parties have come to a settlement on 21.05.2018 before the mediation centre in terms of minutes of meeting dated 30.12.2017. On the basis of the settlement the court has disposed of the Civil Suit. The R-1 has filed the copy of Civil Suit, Judgment and Settlement deed, list of allottees (homebuyers of Shubhkamna City) provided to Association by the Corporate Debtor on 20.02.2017. 25. The Association in the suit has not claimed any relief for cancellation of sub-lease deed dated 27.09.2016. The Association has pursued its claim only against the Corporate Debtor and not against the R-1. It means the Association is not aggrieved with the transaction of sub-lease in favour of R-1. 26. Now, we have considered whether the RP has any locus to file Application before Adjudicating Authority. 27. It is an admitted fact that vide registered instrument (Tripartite Agreement) dated 27.09.2016 a portion of the site i.e. 10,627.229 sq. mts. was sub leased by the Corporate Debtor to the R-1 with the permission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of portion of plot by sub-lease was effected on 27.09.2016 whereas CIRP initiated after more than two years i.e. on 26.11.2018. The RP has no ground to doubt the transaction which is more than two years prior to commencement of CIRP. The association has not raised any plea of fraud in transferring the plot by sub-lease to R-1 and the RP has failed to make out a case that the sub-lease was executed for depriving the rights of homebuyers. Therefore, we find no substance in the argument of Ld. Counsel for the Appellant that the sub-lease is actuated by fraud, therefore, no limitation has applicable to such transaction. 35. As we have already held that before initiation of CIRP, the members of association have arrived at a settlement with the Corporate Debtor and in the suit they have not claimed any reliefs for cancellation of the sub-lease deed dated 27.09.2016. Thus, the plea of RP that he has filed the Application for protecting the rights of homebuyers is not correct. 36. With the aforesaid discussion, we are of the view that the RP has no locus standi to file the Application before the Adjudicating Authority claiming the relief as shown in Para 7. We find no ground to interfere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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