TMI Blog2022 (12) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 14 of the Code but the said application was dismissed. Further, NCLAT also dismissed the appeal holding that it cannot be treated to be the asset of the Corporate Debtor for the application of provisions of Section 14(1)(d) of the Code. The Hon ble Supreme Court, however, allowed the appeal. We have carefully gone through the aforesaid decision which is in fact not applicable to the facts of this case because in the reported case the termination notice was issued by MHADA after the CIRP whereas in the present case the lease deed was terminated way back on 01.12.2015, constructive possession was taken, the Corporate Debtor was admitted into CIRP and moratorium was imposed on 26.04.2019. It has also been observed by the Tribunal that the Corporate Debtor had lost possessory rights more than three years prior to the initiation of the CIRP. The property of third party, occupied by the Corporate Debtor had been expressly excluded from the purview of term asset. Since the demised premises ceased to be the property of the Corporate Debtor much prior to the initiation of CIRP, therefore, it cannot be covered under Section 14 much less 14(1)(d) of the Code. Appeal dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as proceeded under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) on 02.12.2015 and symbolic possession was taken by the secured creditors on 09.03.2017. Axis Bank executed an assignment agreement in favour of Asset Care Reconstruction Enterprises Ltd. (ACRE) on 27.03.2017. ACRE sent a letter on 08.06.2018 to the unit head of RIICO for restoration of allotment which was cancelled on 01.12.2015 to enable the banks for recovery of their dues by sale/auction of the mortgaged property. The said letter was rejected on 27.06.2018. The order dated 27.06.2018 was challenged by ACRE in an appeal before the Managing Director, RIICO which was dismissed on 03.06.2019. The ACRE further filed second appeal against the order dated 03.06.2019 before the Chairman, RIICO which was dismissed on 30.07.2021. 4. ACRE filed an application under Section 7 of the Code before the Adjudicating Authority against the Corporate Debtor for the initiation of CIRP which was admitted on 26.04.2019 and R.D. Chaudhary was appointed as IRP. However, in the second meeting of the Committee of Creditors (CoC) held on 24.10.2019, it approved the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition (C) No. 9955 of 2021 before the High Court of Rajasthan, Jaipur for quashing of the order dated 11.08.2021 and alternatively filed I.A. No. 646 of 2021 under Section 60(5) of the Code before the Adjudicating Authority. It is alleged that vide order dated 18.09.2021, the writ petition was disposed of by the High Court granting the liberty to approach the Adjudicating Authority to protect the property in question (hotel). It is further alleged that the Respondent took possession of the land premises on 20.09.2021. It is also alleged that the order of the Ld. Single Judge of the High Court dated 18.09.2021 was challenged by way of intra-court appeal bearing Special Appeal Writ No. 1029 of 2021. 5. However, the appeal which has been preferred is on account of dismissal of the application bearing I.A. No. 646/AHM/2021 in which the following prayers were made: a) The Hon'ble Tribunal be pleased to pass an order staying the proceedings pursuant to the Cancellation Order passed by the Respondent in relation to the cancellation of the lease deed for the Land Premises and the Hotel, including all proceedings for the re-possession of the Land Premises; b) Pending t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 14(1) (d) of the Code, recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate Debtor is prohibited. In support of his submissions, he has relied upon a decision of the Hon ble Supreme Court in the case of Mr. Rajendra K. Bhutta Vs. Maharashtra Housing Area Development Anr. (2020) 13 SCC 208. It is argued that the land in question has construction of a hotel which can be occupied by the resolution applicant with the consent of the RIICO after paying its debts otherwise in order to reclaim the land under lease the hotel may be reduced in rubble. However, he has not denied that premises has been sealed by the RIICO w.e.f. 20.09.2021. 8. On the other hand, Counsel appearing on behalf of the Respondent has referred to the termination /cancellation letter dated 01.12.2015 (Annexure-A4) to contend that though the allotment was made on 11.07.2007 and lease deed was executed on 21.06.2008 but till 2015 the Corporate Debtor failed to complete the construction by covering at least 20% of the plot area with pucca structure besides failing on other aspects also and was thus asked to handover the possession within s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. [Explanation.-For the purposes of this sub-section, it is hereby clarified that notwithstanding anything contained in any other law for the time being in force, a license, permit, registration, quota, concession, clearances or a similar grant or right given by the Central Government, State Government, local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, shall not be suspended or terminated on the grounds of insolvency, subject to the condition that there is no default in payment of current dues arising for the use or continuation of the license, permit, registration, quota, concession, clearances or a similar grant or right during the moratorium period;] (2) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. [(2A) Where the interim resolution pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pment agreement was entered into. The UBI executed a loan agreement in favour of the Corporate Debtor but the Corporate Debtor defaulted in repayment of loan, as a result, the bank preferred an application under Section 7 of the Code on 15.05.2017 which was admitted on 24.07.2017, appointing an interim resolution professional and declaring the moratorium in terms of Section 14 of the Code. MHADA, after imposition of the moratorium under Section 14 of the Code, issued a termination notice on 12.01.2018 to the Corporate Debtor stating that upon expiry of 30 days from the date of receipt of the notice, the joint development agreement would stand terminated. 13. In the case of Rajendra K. Bhutta (Supra), the application under Section 7 was admitted on 24.07.2017 and notice of termination was issued on 12.01.2018. The Appellant wherein filed an application before the NCLT to restrain MHADA from taking over possession till completion of the CIRP, on the ground that recovery of possession shall be in derogation of the moratorium imposed under Section 14 of the Code but the said application was dismissed. Further, NCLAT also dismissed the appeal holding that it cannot be treated to be t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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