TMI Blog2022 (3) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Resolution Applicant viz., M/s. Statcon Electronics India Limited (Resolution Applicant), in addition to this, the Resolution Applicant issued a letter dated 05.02.2021, through which the Resolution Applicant gave an undertaking affidavit to pay the Applicant as per the proportionate ratio given to other financial creditors' in the Resolution Plan. The said letter further stated that such payments had been taken under contingencies fund therefore, no prejudice will be caused to the Applicant in case the claim is admitted as either Operational Creditor or Financial Debt, as the amounts that would be paid to it under the Resolution Plan will be as per the proportion ratio given to other Financial Creditors. Application dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present Resolution Professional Mr. Ashok Kumar Gupta and direct further action against the said Resolution Professional for his misconduct in not informing and allowing the applicant to participate in CoC and allegedly converting and considering the status of the applicant, GNIDA, from financial creditor to operational creditor, without adjudication, reasons and justification, resulting in financial loss to a Government Authority GNIDA and dealing with the owner of the land to its detriment and resulting in unlawful financial gain to the Corporate Debtor and other Creditors at the expenses of the Applicant. e) Any other relief or Order (s) which this Tribunal may deem fit and proper be also passed in favour of the Applicant/GNIDA. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding plan approved by it. The Applicant handed over to the Corporate Debtor, through a Lease Deed, for constructing its industrial building over the said Plot. Submissions of the Applicant 5. It is submitted that the Applicant cannot be deprived of its rights as owner and lessor of the land as it has transferred only the lease hold rights, either by way of lease or sub-lease, on deferred payment basis to be made in installments. The Applicant is the Financial Creditor and has a higher charge/preference in relation to any other Creditors. The Applicant not being acknowledged, sub-leased plot nor any plot owned or standing in the name of the Corporate Debtor can be the subject matter of any resolution and no resolution plan can be propo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nition of the word 'Operational Creditor' and 'Operational Debt' and an Operational Creditor can only be in relation to an Operational Debt which is limited to claims in respect of Goods and Services supplied to the Corporate Debtor. Allotment of land has been made by the Applicant, against payment, part of which is paid and part of which is deferred, thus, when the terms of the lease mandate payment of interest in the event of delay in payment of the dues, then the allotment does not constitute supply of any service and services can only be in relation to rendition of some employment of professional services. As far as the word 'goods' is concerned, immovable property can never fall in the definition of goods which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the mortgaged property in the event the Corporate Debtor mortgages or charge the Plot therefore, the stipulations contained in the Lease Deed clearly establish that for payment of the dues of the Authority the leased Plot stands as a security in favor of the Authority. Further, the dues of the Applicant may also be reflected in the balance sheet of the Corporate Debtor thus the Applicant is a Financial Creditor and not an Operational Creditor. 8. The Applicant submitted its proof of claim for an amount of ₹ 35,65,150 as a Financial Creditor with the Respondent in the month of July, 2020 and the decision of the Respondent is in contrast to the correct factual position and it would constitute an attempt to defeat the rightful dues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if it is entertained, at such belated stage, the same would jeopardize the CIRP. The Applicant relied upon the Lease Deed dated 23.10.2002, which is not submitted either with the Form-C or with the instant application, however, it is apparent from the Supplementary/Correction Deed dated 23.04.2004, that the same was pari materia to the lease deed in the matter of New Okhla Industrial Development Authority Vs. Mr. Anand Sonbhara, Resolution Professional Company Appeal (AT) (Ins) No. 1183/2019 decided on 16.04.2021 and there was no transfer of ownership of the underlying land of the Corporate Debtor, as contemplated under the Lease and hence, the same cannot be held as a 'Financial Lease'. The issue qua the Applicant being an 'Op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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