TMI Blog2022 (11) TMI 1125X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the delay by G. Noida in filing the Claim Application as a Financial Creditor . On perusal of New Okhla Industrial Development Authority Vs. Anand Sonbhadra and New Okhla Industrial Development Authority Vs. Manish Gupta Anr. [ 2022 (5) TMI 875 - SUPREME COURT ], it is clear that the amount due to Noida be treated as an Operational Debt and therefore the Noida is an Operational Creditor and not a Financial Creditor . This issue has since attained finality. Noida did not exercise its right in filing its Claim on time and has belatedly challenged the rejection after the approval of the Resolution Plan. On a query from the Bench, as to whether any provision was made in the Resolution Plan for the dues of Noida, the Counsel for the SRA submitted that the outstanding amount is reflected in the Books of Accounts of the Corporate Debtor and shown in the Information Memorandum and were dealt with as per the provisions of the Code. It is also significant to mention that the cancellation Notice sent by Noida is dated 07.06.2019 which is subsequent to the commencement of the CIRP date 31.05.2019. In the instant case, there are no material irregularity in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns without taking into consideration the objections raised by the Appellant herein. It is submitted by the Learned Sr. Counsel that the Lease in question ought to be classified as a Financial Lease as the land has been allotted to the Corporate Debtor with a right of mortgage of the said Leasehold Property to raise buildings and subsequently to execute Sale Deeds in favour of the Homebuyers vide Tripartite Transfer Deeds. Under the Lease Deed, the consideration by which in lieu of grant of Leasehold Rights consist of two components i.e., premium to be paid by the Lessee either in instalments along with interest or as an annual Lease Rent to be paid every year or to pay Lease Rent equivalent to 11 years at 1% per year equivalent to the 11% of the total premium of the plot has One Time Lease Rent. The premium payable by the Lessee is equivalent to the fair value of the Leasehold Rights. Therefore, the claim made by the Appellant ought to be treated as a Financial Debt . As per the Lease Deed dated 28.10.2020, the total consideration of proportionate premium paid is Rs.2,06,05,820/-. The balance amount is to be paid with interest at 12% p.a. in 16 half-yearly instalments spr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erational Creditor and to send their claim in Form- B and calculate their interest after the date of Admission of the CRP. There are no reasons given regarding the delay by G. Noida in filing the Claim Application as a Financial Creditor . On a query from the Bench, it was submitted that because the matter New Okhla Industrial Development Authority Vs. Anand Sonbhadra was pending before the Hon ble Supreme Court wherein the issue was whether Lease Deeds executed by Noida are Operational Leases under the Indian Accounting Standards, the Appellant herein had waited for the result of the Appeal. 5. The Hon ble Supreme Court in New Okhla Industrial Development Authority Vs. Anand Sonbhadra and New Okhla Industrial Development Authority Vs. Manish Gupta Anr. 2022 SCC OnLine SC 631, has observed as follows: 153. As far as the case of the respondents that the appellant is a Local Authority goes, the case of the respondent was largely premised on the Judgment of this Court in Union of India v. R.C. Jain. In short, the case of the respondent was that the appellant is a Local Authority and the rental and premium in question, claimed by the appellant, constitutes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Of course, she would point out that as far as the rental part of the claim, it may be relatable to the first limb of an operational debt. When questioned further, as to what her position is, if this Court found that the appellant is not a financial creditor, the appellant may be entitled, at least, to be treated as an operational creditor. We would think that, having regard to the fact that both the NCLT and NCLAT have proceeded on the basis that the appellant is an operational creditor, we need not stretch the exploration further and pronounce on the questions, which may otherwise arise. We must not be oblivious to the following prospect, should we find that the appellant is not an operational creditor, even under the IBC Regulations apart from claims by financial creditors and operational creditors, claims can be made by other creditors. However, there are, undoubtedly, certain advantages, which an operational creditor enjoys over the other creditors. We would proceed on the basis that, while the appellant is not a financial creditor, it would constitute an operational creditor. 156. The upshot of the above discussion is that the appeals must fail. The appeals are, accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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