9911796707
TMI Blog2022 (6) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... n Arora is the applicant, and Punjab Small Industries & Export Corporation Limited is the respondent. 2. In the present application, the applicant prays to pass an order setting aside the impugned demand notice dated 05.03.2021 issued by the respondent corporation; pass an order extinguishing the claim of the respondent corporation as envisioned under Clause 6 of the resolution plan; award costs of this application; and any further order, direction that this Bench may deem fit to order. 3. In this application, the applicant states inter alia, that subsequent to approval of the resolution plan under Section 30 and 31 of the Code, 2016 by this Adjudicating Authority on 10.02.2021, it has received a demand from PSIEC pertaining to Plot No.256-57, Phase-VIII, Focal Point Ludhiana for an amount which was payable prior to the CIRP. The applicant has stated that the demand notice cannot be sustained in the eyes of law, firstly because the same pertains to a period prior to the CIRP of the present applicant and in view of the statutory provisions of the Code, 2016 under Section 31 and Section 32A. 3.1 It is further stated that this demand notice is also creating further hindrance in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 20.01.2009 as NOC for mortgage of the same plot in question with a clear stipulation that original lease deed would not be handed over to the lessee. It is also submitted that in the lease deed, there was a clear stipulation in para 2 and 3 of the lease deed that the price of plot was tentative and was subject to variation with reference to the actual measurement of the plot and enhancement in the cost of acquisition of land. In Clause 3, it was provided that non-payment of delayed payment of additional cost within 30 days was to attract 3% penal interest in addition to normal interest of 15% with half yearly compounding effect on the defaulted amount for the defaulted period. The additional amount is determined @Rs.474/- per sq. yard keeping in view the judgement of the Hon'ble Punjab and Haryana Court dated 25.08.2008 read with judgment of the Hon'ble Supreme Court of India dated 25.03.2015 on this issue. Upon failure of the transferee, a show cause notice for cancellation of allotment on account of failure to deposit enhanced land cost amounting to Rs.1,05,10,685/- was issued vide letter dated 08.03.2019. The said demand and show cause notice is challenged by the transfere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code, as well as the various judgements passed by various Hon'ble Courts. The following extract from the Section 31 of the Code dealing with approval of resolution plan has been relied upon in support of the contention of the applicant:- "31.(1) If the Adjudicating Authority is satisfied that the resolution plan as approved by the committee of creditors under sub-section (4) of section 30 meets the requirements as referred to in sub-section (2) of section 30, it shall by order approve the resolution plan which shall be binding on the corporate debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority to whom a debt in respect of the payment of dues arising under any law for the time being in force, such as authorities to whom statutory dues are owed, guarantors and other stakeholders involved in the resolution plan. xx xx xx xx" (emphasis supplied) 5.2 It has also placed reliance on Clause 6 of the resolution plan and all its sub clauses wherein the plan itself provides for extinguishment of all claims that do not form a part of the plan and the same cannot now be enforced after the approval of the plan b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. We have gone through the arguments along with their submissions filed by all the parties and have perused the records carefully. 8. In the present case, the liability to pay enhanced land compensation arises from the conditions mentioned in the Allotment Letter dated 01.12.1995. This has been a subject matter of litigation between the parties and the additional amount is determined on the basis of the judgment of the Hon'ble Punjab and Haryana Court dated 25.08.2008 read with judgment of the Hon'ble Supreme Court of India dated 25.03.2015 on this issue. We also note that the applicant has filed a Civil Suit dated 23.04.2019 on the issue of enhanced land compensation and the said civil suit is pending adjudication. It is further noted that the ownership continues to vest with PSIEC and the lease rights cannot be transferred/alienated without prior consent of PSIEC. Strictly speaking, the amount of enhanced land cost payable, which had crystallized before the initiation of the CIRP proceedings, is not a statutory due. It is also noticed that in the present case, the PSIEC was totally oblivious of the CIRP proceedings in the case of the applicant and came to know about the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the creation of charge or securities in respect of MCGM's properties. Nevertheless, the authorities under the Code could not have precluded the control that MCGM undoubtedly has, under law, to deal with its properties and the land in question which undeniably are public properties. The resolution plan therefore, would be a serious impediment to MCGM's independent plans to ensure that public health amenities are developed in the manner it chooses, and for which fresh approval under the MMC Act may be forthcoming for a separate scheme formulated by that corporation (MCGM)." (emphasis supplied) 8.4 In the present case, there was a defect in the title of the land itself and this issue has now been resolved after prolonged litigation. This fact was not a subject matter of discussion during the CIRP proceedings. The extra payment of compensation will only remedy the defect in the title to the land and PSIEC can cancel the lease as per the terms and conditions of the original allotment letter. The applicant has claimed that the demand notice can't be sustained in view of the provisions of Section 31 of the I&B Code. For the sake of clarity, the relevant part of the Section 31 is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Bench may deem fit to order. 3. In this application, it is stated that the Attachment Order was passed on the basis of the final order dated 22.02.2011 by the CESTAT, issues decided by the applicant company. The impugned order is under appeal before the Hon'ble High Court of Himachal Pradesh, by the applicant company challenging the order passed by the learned CESTAT by way of an appeal bearing No.CEA-2-2013 and the same is still pending. Subsequently, this Tribunal by order dated 10.02.2021 has approved the resolution plan in pursuant to which the management of present applicant company was taken over by Successful Resolution Applicant Consortium of ARR ESS Industries Private Limited and Leading Edge Commercial FZE. It is further stated that in terms of the resolution plan and in view of the Section 32A of the Code, makes it abundantly clear that once the plan is approved, any erstwhile prosecutions against the applicant company, shall cease as on the date of approval of the plan. 4. The Respondent by its reply filed by Diary No.01367/2 dated 12.04.2022 stated that the applicant company had taken input credit amounting to Rs.19,45,955/- during the period April 2003 to June 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ody of the applicant will not prevent the applicability of the Section 32A, relevant part of which is extracted below for the sake of clarity:- "Section 32A: Liability for prior offences, etc. 1[32A. (1) Notwithstanding anything to the contrary contained in this Code or any other law for the time being in force, the liability of a corporate debtor for an offence committed prior to the commencement of the corporate insolvency resolution process shall cease, and the corporate debtor shall not be prosecuted for such an offence from the date the resolution plan has been approved by the Adjudicating Authority under section 31, if the resolution plan results in the change in the management or control of the corporate debtor .............. ...... (2) No action shall be taken against the property of the corporate debtor in relation to an offence committed prior to the commencement of the corporate insolvency resolution process of the corporate debtor, where such property is covered under a resolution plan approved by the Adjudicating Authority under section 31........." As the offences in the present case were committed in the year 2003, we are of the view that the above provi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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