TMI Blog2022 (6) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... the land and is not linked to the CIRP. The approved Resolution Plan cannot preclude the control that PSIEC has under law to deal with its properties and the plot in question which is undeniably a public property - this Bench is of the opinion that the enhanced land compensation is a payment towards rectifying the defect in the title to the property and is not statutory dues within the meaning of the provisions of Section 31 of the I B Code - the impugned demand notice issued by the Respondent Corporation is rejected. Seeking release of attached and detained goods - seeking extinguishment of claim of the respondent as envisioned under Clause 6 of the resolution plan - HELD THAT:- It is apparent that at the time of initiation of CIRP, the interest amounting to Rs.29,85,928/- stood as the liability of the applicant company towards payment of interest in view of the CESTAT order. The goods lying in the safe custody were only to secure the payment of the outstanding dues subject to the final orders of the Hon ble High Court of Himachal Pradesh. As per the provisions of the Insolvency and Bankruptcy Code, 2016, it was the duty of the Commissionerate of Central Excise to lodge its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dismissal of this non core asset as per the resolution plan, since as per the plan the same needs to be sold so as to repay the financial creditors. 3.2 The applicant has also placed reliance on the decisions of the Hon ble Supreme Court in Essar Steel India Ltd. Committee of Creditors Vs. Satish Kumar Gupta, (2020) 8 SCC 531, in the case of Manish Kumar Vs. Union of India, (2021) 5 SCC 1 and in the case of Ghanashyam Mishra Sons (P) Ltd. Vs. Edelweiss Asset Reconstruction Co. Ltd. (2021) 9 SCC 657 4. The Respondent by its reply filed by Diary No.01354/2 dated 12.04.2022, invited our attention to Clause 2(iii) of the allotment letter dated 01.12.1995 and further Clause 2(ii) which provides as under:- 2(iii) The above price of the plot is subject to variation with reference to the actual measurement of the plot and cost of acquisition of land. In case of enhancement of compensation on ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 transferee by filing a civil suit before the learned Civil Judge, Ludhiana and the matter is still subjudice and the allottee instead of waiting for the outcome of the said suit has filed the present application under IBC without disclosing the said material particulars. It is further stated that it was only on 27.10.2021 that, while requesting for issuance of No Due Certificate, the transferee informed about the approval of resolution plan by this Hon ble Tribunal and acting contumaciously, the factum of charge and repeated demands of enhanced land cost compensation, was not brought to the notice of the either the IRP or Committee of the Creditors, thus M/s SEL Manufacturing Limited has not only cheated the answering respondent but have also misled the IRP, CoC and this Hon ble Tribunal before getting the CIRP approved from this Hon ble Tribunal. The respondent submits that the application deserv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by the respondent. 5.3 It is further stated that the costs accrued prior to the plan having been approved and thus cannot be enforced against the present application post the approval of the plan as all undecided claims not forming a part of the plan stand extinguished. 5.4 The applicant has also placed reliance on the decisions of the Hon ble Supreme Court in Essar Steel India Ltd. Committee of Creditors Vs. Satish Kumar Gupta, (2020) 8 SCC 531, in the case of Manish Kumar Vs. Union of India, (2021) 5 SCC 1 and in the case of Ghanashyam Mishra Sons (P) Ltd. Vs. Edelweiss Asset Reconstruction Co. Ltd. (2021) 9 SCC 657 6. In the synopsis and list of dates and events filed on behalf of the Respondent by Diary No.01354/3 dated 19.04.2022, the fact that issue is subjudice before the learned Civil Court at the instance of the present application has been highlighted. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EC. 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 much after the approval of the resolution plan by the Adjudicating Authority. It is an admitted fact that under the present framework, there is no requirement for the corporate debtor to inform about any ongoing proceeding. We have gone through the judicial decisions by the Hon ble Supreme Court relied upon by the applicant. While the ratios in these decisions lay down the law of the land, we very respectfully submit that the facts in the present case are distinguishable. 8.1 In this context, we refer to the following observation in the decision of the Hon ble Supreme Court in the Municipal Corporation of Greater Mumbai (MCGM) Vs. Abhilash Lal Others reported as 2020 (13) SCC 234 in Civil Appeal no.6350 of 2019 dated 15.11.2019, which inter alia deals with mortgage of plot and buildings by public authorities. 35 The only mode permitted is through prior pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 extracted below: Section 31: Approval of resolution plan. *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, 1[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. (emphasis supplied) 8.4 After going through the records before us, we hold that the additional payment made in the demand notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dantly 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 2003. The order has gone through the appellate process and finally the party deposited all the dues except interest amounting to Rs.29,85,928/- and filed an appeal before the Hon ble High Court of Himachal Pradesh against the CESTAT final order dated 20.02.2011 confirming duty and interest. The Hon ble High Court of Himachal Pradesh vide detailed judgment date 24.02.2022 has dismissed the appeal filed by the applicant company. Meanwhile goods pertaining to M/s Saluja Exim Ltd. (Now M/s SEL Manufacturing Co. Ltd.), Plot no.106, HPSIDC, Indl. Area, Baddi, valuing Rs.38,53,440/- were detained on 22.02.2013 and have been kept lying in the safe custody. It is also stated that the fact regarding the CIRP process was not brought to the notice of the Hon ble High Court of Himachal Pradesh by the applicant. It is further stated that the CoC ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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