TMI Blog2022 (12) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... y from one person to another, either in present or even in future. Agreement to sell is a promise of a future transfer of property ownership which outlines the terms and conditions under which the property will be transferred. An agreement to sell an immovable property is therefore a bilateral contract under which the two parties, i.e. the buyer and the seller, agree to certain terms and conditions, subject to which the property in question would be transferred by the seller to the buyer for a decided sale consideration. It is only after such bilateral obligations are discharged that the execution of the sale deed kicks in and it is this sale deed, which is compulsorily registrable under the Registration Act, 1908, which upon being registered, would transfer the right, title and interest in the property in question on to the purchaser. In the present factual matrix, the agreement to sell was yet to culminate into a registered sale deed and therefore not ripe for transfer of the title of property in question from the Corporate Debtor to the Appellant. It is held in negative the claim of the Appellant that upon execution of the Agreement to Sell, the ownership of the project land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Abhishek Anand and Mr. Prateek Kushwaha , Advocates for R - 1 JUDGMENT [ Per : Barun Mitra , Member ( Technical ) ] The present appeal, filed under Section 61 of the Insolvency and Bankruptcy Code, 2016 ( IBC in short) by the Appellant arises out of order dated 13.12.2021 (hereinafter referred to as Impugned Order ) passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi, Bench-III) in IA No. 2871/2021 in CP(IB) No. 1022/(ND)/2018. By the Impugned Order, the Adjudicating Authority approved the Resolution Plan of the Corporate Debtor without disposing IA Nos. 5333/2020 and 1587/2021 filed by the present Appellant and therefore aggrieved by the impugned order, the present appeal has been preferred by the Appellant. 2. The brief facts of the case necessary to be noticed for deciding the appeal are: - M/s Rohtas Projects Limited, the Corporate Debtor was allotted a plot of land in Sector 140, Noida in 2007 by the Noida Authority for construction and setting up of an Information Technology Enabled Services (IT ITES) commercial complex. The lease deed in favour of Corporate Debtor was executed on 22.10.2008 by which the Corporate Debtor came t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the interest of justice, equity and good conscience; IA No. 1587/2021: a. directing the Resolution Professional not to make the property bearing Plot No.2 admeasuring 20,000 sq. mtrs. situated in Sector 140, Noida as part of the assets of the Corporate Debtor; b. directing Resolution Professional/COC to exclude the said property bearing Plot No.2 admeasuring 20,000 sq. mtrs. situated in Sector 140, Noida from resolution plan of the Corporate Debtor; c. directing Resolution Professional to return the possession of the said property to the Applicant without any further delay; and d. pass any such order(s) as may be deemed necessary. Aggrieved by the fact that these two IAs filed by the Appellant remained undisposed, while the Adjudicating Authority went ahead and approved the Resolution Plan of the Corporate Debtor in IA No.2871/2021, the Appellant has preferred this appeal. 3. Making his submissions, the Learned Counsel for the Appellant claimed that by virtue of Agreement signed between the Corporate Debtor and the Appellant, the Appellant had acquired ownership and taken over possession of 6,00,000 sq. ft. in the said plot for development and construction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esolution Plan approved by COC as several important material facts were concealed. The Appellant has also questioned the propriety of the decision of the Resolution Professional /Respondent No.1 in declaring the agreement between the Appellant and Corporate Debtor to be null and void and using this false premise to get Resolution Plan admitted by the Adjudicating Authority. 7. Advancing his side of arguments, the Learned Counsel for the Respondent strongly refuted the contention that the Appellant are absolute owners of the plot by virtue of the Agreement signed with the Corporate Debtor. It is contended that the Agreement does not grant any ownership rights to the Appellant. The said project land was obtained from the Noida Authority vide a lease deed dated 22.10.2008 executed between Noida Authority as the lessor and the Corporate Debtor as the lessee. Clause 14(b) of the Lease Deed clearly provides that sub-lease can be done by the Corporate Debtor only with the prior approval of Noida Authority being the lessor. Thus separation of the plot could not have been done without prior permission of Noida Authority, and in the present case the Appellant had failed to provide any No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porate Debtor continued to remain the owner of the project land. The said plot being the asset of the Corporate Debtor, the Respondent No.1/Resolution Professional was duty bound to take possession of the same in terms of Section 18 of the IBC and cannot be faulted for having included it in the pool of assets of the Corporate Debtor. 10. Emphatically asserting that pendency of IAs before the Adjudicating Authority do not constitute sufficient grounds for preferring an appeal against an order approving Resolution Plan, the Learned Counsel for the Respondent pointed out that Section 61(3) of the IBC stipulates specific grounds for preferring an appeal against an order of the Adjudicating Authority approving a Resolution Plan under Section 31 of the IBC. Since the Appellant has failed to show any contravention of provisions of any law or material irregularity in the exercise of power by the Respondent No.1/Resolution Professional, it was argued that there are no sufficient grounds for preferring an appeal in the matter. Further, reliance was placed upon the judgment of Hon ble Supreme Court in the case of K. Sashidhar v. Indian Overseas Bank (2019) SCC OnLine SC 257 to claim that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntcy by the Hon ble Apex Court. 13. We have duly considered the detailed arguments and submissions advanced by the Learned Counsel for both the parties and perused the records carefully. 14. The moot points before us for our consideration are: - (i) whether the Agreement to Sell dated 14.04.2015 between the Corporate Debtor and the Appellant vested ownership rights on the Appellant in respect of the project land over which leasehold rights had been obtained by the Corporate Debtor from Noida authority after executing a Lease deed on 22.10.2008; (ii) whether the Resolution Professional/Respondent No.1 by including the project land in the pool of assets of the Corporate Debtor had acted beyond the statutory framework of IBC; and (iii) whether the approval of the Resolution Plan of the Corporate Debtor by the Adjudicating Authority without deciding the two IAs filed by the Appellant suffered from impropriety. Point No. (i) 15. The rival contentions of the two sides have been noted. According to the Appellant, by their entering into the Agreement to Sell with the Corporate Debtor and also having paid certain amounts on behalf of the Corporate Debtor to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Emphasis supplied) 18. We find that this is reinforced by the provisions contained in the Agreement to Sell in that the Agreement unequivocally acknowledges the over-riding provisions of the Lease Deed which find place at pages 49-66 of the APB and the relevant excerpts are as below: 22. That it is mutually agreed between both the parties that the necessary documents for the transfer of the title of the SECOND PARTY will be executed in favour of the SECOND PARTY/Assignees/Nominees of the SECOND PARTY after the completion of the said complex and obtaining the Occupation Certificate and expenses incurred for the same shall be borne by the SECOND PARTY. This is however subject to the terms of Lease Deed and applicable laws, bye-laws, rules, regulations etc of NOIDA Authority. ****** ******* ******* 26. That the clauses of this agreement shall not supersede the lease agreement executed between the FIRST PARTY and NOIDA development authority. That both the parties and their allottees shall be bound by the terms condition above said lease agreement executed between FIRST PARTY and NOIDA development authority. (Emphasis supplied) 19. The Lease Deed clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of Transfer of Property Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53A of Transfer of Property Act). According to Transfer of Property Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of Transfer of Property Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter. 21. It is therefore a settled proposition of law that an Agreement to sell does not convey a property from one person to another, either in present or even in future. Agreement to sell is a promise of a future transfer of property ownership which outlines the terms and conditions under which the property will be transferred. An agreement to sell an immovable property is therefore a bilateral contract under which the two parties, i.e. the buyer and the seller, agree to certain terms and conditions, subject to which the property in q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness operations for the previous two years; (ii) financial and operational payments for the previous two years; (iii) list of assets and liabilities as on the initiation date; and (iv) such other matters as may be specified; (b) receive and collate all the claims submitted by creditors to him, pursuant to the public announcement made under Sections 13 and 15; (c) constitute a committee of creditors; (d) monitor the assets of the corporate debtor and manage its operations until a resolution professional is appointed by the committee of creditors; (e) file information collected with the information utility, if necessary; and (f) take control and custody of any asset over which the corporate debtor has ownership rights as recorded in the balance sheet of the corporate debtor, or with information utility or the depository of securities or any other registry that records the ownership of assets including- (i) assets over which the corporate debtor has ownership rights which may be located in a foreign country; (ii) assets that may or may not be in possession of the corporate debtor; (iii) tangible assets, whether movable or im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mework of IBC or that his conduct did not inspire confidence in the credibility of the insolvency process undertaken by him. Point No. (iii) 28. This brings us to the issue wherein the Appellant has claimed that while other IAs relating to the CIRP of this Corporate Debtor were disposed by the Adjudicating Authority, the IAs filed by them remained unheard which militates against the principles of natural justice. It has also been urged that the Adjudicating Authority ought to have first adjudicated upon the two IAs filed by the Appellant before approving the Resolution Plan. 29. We would like to begin with finding out what was the main issue raised in IAs 1833/2021 4904/2021 and how the IAs were treated by the Adjudicating Authority. In IA No. 1833/2021, the main issue raised was to exclude the Rohtas Presidential Tower, Vibhuti Khand, Gomti Nagar, Lucknow from the Corporate Insolvency Resolution Process of the Rohtas Projects Limited. In IA No. 4904/2021 too, the issue raised was to exclude the Rohtas Presidential Tower Project of the Corporate Debtor situated at Vibhuti Khand, Gomti Nagar, Lucknow from the Corporate Insolvency Resolution Process of the Corporate De ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
