TMI Blog2023 (3) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... as that Respondent be directed not to consider the composite Resolution Plans, which prayer made in the Application still survives and has rightly been considered by the Adjudicating Authority in the impugned order. The submission of the Appellant that Application has become infructuous cannot be accepted. When it has been pointed out before the Adjudicating Authority that the terms of the Lease Deed under which the land was leased out is being violated and the said land is sought to be dealt in the Resolution Plans, Adjudicating Authority had every jurisdiction to direct that composite Plan be not considered. There are no substance in the submission raised on behalf of the learned Counsel for the RP that Adjudicating Authority had no jurisdiction in the matter. The submission is wholly unfounded and is uncalled from the RP, who is duty bound to ensure that provisions of the Code and Regulations are complied with. When the question that composite Plan submitted by Resolution Applicant for approval, does not fulfil the criteria and is not valid or legal, the RP cannot be heard in saying that issues be not looked into by Adjudicating Authority. All acts of RP should be to ensure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018, by which order, Adjudicating Authority allowed the Application filed by New Okhla Industrial Development Authority ( NOIDA ) Respondent No.1. 2. Company Appeal (AT) (Ins.) No.424 of 2022 has been filed by E-Homes Infrastructure Private Limited, the Resolution Applicant, who has filed two Resolution Plans in Corporate Insolvency Resolution Process ( CIRP ) of two Corporate Debtors namely - Neo Infrastructure Private Limited and M/s Brys International Private Limited. The Company Appeal (AT) (Ins.) No.434 of 2022 has been filed by Dinesh Sood, Resolution Professional ( RP ) of Neo Infrastructure Pvt. Ltd. and Company Appeal (AT) (Ins.) No.458 of 2022 has been filed by Homebuyers, who have been allotted units by M/s Brys International Private Limited. The Appellants - Homebuyers were also Financial Creditors of the Corporate Debtor M/s Brys International Private Limited. 3. Brief facts and sequence of events necessary to be noticed for deciding issues raised in these Appeal(s) are: (i) The NOIDA entered into Lease Deed dated 17.01.2012 with M/s Logix Builders Promoters Pvt. Ltd. (hereinafter referred to as Lessee ), by which commercial Plot No.SC 01/A, situated at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Resolution Plans were approved by the CoC on 28.02.2020 and an Application was filed by RP for approval of the Plans before the Adjudicating Authority. (x) The CA No.2488 of 2019 was heard by the Adjudicating Authority and by the impugned order, the Adjudicating Authority has allowed the Application filed by Respondent No.1. Aggrieved by the order passed by the Adjudicating Authority, these three Appeal(s) have been filed. 4. We have heard learned Counsel for the Appellant, i.e., Resolution Applicants, Resolution Professional as well as Homebuyers. We have also heard learned Counsel appearing for NOIDA. 5. The learned Counsel for the Successful Resolution Applicant submits that Adjudicating Authority has passed order on CA No.2488 of 2019, which Application became infructuous in view of the approval of the Resolution Plan and the order passed by the Adjudicating Authority is ineffective. The Adjudicating Authority has exceeded its jurisdiction in interpreting contractual rights and obligation of the parties. NOIDA never exercised its right to cancel the Sub-Lease Deed. The order passed by the Adjudicating Authority is also in violation of the principles of natur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Debtor, nor the same can be taken in possession by the RP. The Collaboration Agreement, which was executed, was in violation of the terms of Sub-Lease Deed, is void and inoperative. The Resolution Applicant has cleverly submitted Resolution Plans for both the Corporate Debtor, i.e. Neo Infrastructure Pvt. Ltd. and Brys International Pvt. Ltd. providing for that approval of Resolution Plan of Neo Infrastructure Pvt. Ltd. is contingent to Resolution Plan of Brys International Pvt. Ltd. No order was passed by the Adjudicating Authority for consolidation of CIRP of both the Corporate Debtors and seeking approval of conjoint Resolution Plan by the Resolution Applicant was a clever device to take up the land of Respondent No.1 without obtaining its prior permission and without clearing its dues. Approval of Resolution Plan by the CoC was beyond the timeline of the CIRP period. The Plan was sought to be amended by the Resolution Applicant, even after voting on the Plan. The Application filed by Respondent No.1 has not become infructuous. Respondent No.1 has sought direction, not to accept consolidated Plan for both the Corporate Debtors, which were contrary to the IBC. The RP has failed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Change in Constitution will be permitted as per prevailing policy of the Lessor and as per terms and conditions of the brochure of the scheme. No transfer charges shall be applicable if built up space of commercial, plot, is transferred within two years from the date of issuing of the completion certificate by the LESSOR. Thereafter, the transfer charges shall be payable on a pro-rata basis as applicable. In addition to the transfer charges, an amount of Rs.10,000/- shall also be payable against the processing fee. The sub-lessee will be permitted to transfer the built-up space on the fulfillment of the following conditions:- (i) The sub-lessee has made full payment of the plot premium along with interest thereon and the up-to-date lease rent along with interest, if any, due thereon. (ii) The lease deed as per rules has been duly executed. (iii) The sub-lessee has obtained the building completion certificate from the LESSOR. (iv) The transferee(s) undertake to put to use the premises for the original permissible use only and the premises being transferred are as per completion certificate and are not part of any common area. (v) The Sub-lessee sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot in favour of the Developer and Developer hereby accept the transfer of such Development and Sales Rights, at a consideration provided in Clause 4 of this Agreement and simultaneously with such transfer, the Company hereby cease to have any Development and Sales Rights In the Company Demised Plot except in relation to the Company Allocation, as more, specifically mentioned in this Agreement. 4. CONSIDERATION 4.1 As a consideration for transfer of Development and Sales Rights and in lieu of payment being made by Logix to Noida Authority under the Lease Deed, the Developer shall pay to the Logix, a sum of Rs.20,00,00,000/- (Rupees Twenty Crores Only) as non-refundable security deposit ( Non-Refundable Security Deposit ). Out of the aforesaid amount of Non-Refundable Security Deposit, the Developer has already paid an amount of Rs.17,50,00,000/- (Rupees Seventeen Crores Fifty Lakhs Only) to the Logix as per the following details : S. No. Cheque No./Date Amount Bank 1 512702 dated 30/03/2013 7,50,00,000/- Bank of Baroda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction was sought to not accept the Plans, which proposes a composite scheme for the Corporate Debtor. The relief sought in the Application was to the following effect: V. RELIEF SOUGHT In view of the facts mentioned above, the Applicant herein prays that the Hon ble Tribunal may be pleased to: a. Direct the Respondent to not accept any resolution plans which propose a composite scheme for the Corporate Debtor and Brys International Pvt Ltd. b. Grant a stay on the voting of the resolution plan which has been submitted by E-Homes Infrastructure Pvt Ltd in the CIRP of the Corporate Debtor; c. any other relief or reliefs as this Hon'ble Tribunal deems fit; 16. In the Application several grounds were specifically taken by the Noida. Some of the grounds from (e) to (i) are as follows: (e) Because, the Corporate Debtor cannot transfer, sub-divide, create encumbrance or transfer development rights to any other entity without the express permission of the Applicant. The Applicant has never given any such permission to transfer development rights or any other right to any 3rd party that is not party to the Sub-Lease Deed. (f) Because, under the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfrastructure Pvt. Ltd. and Brys International Pvt. Ltd. Clause 5.2.1 of 5th Amended Resolution Plan of Neo Infrastructure Pvt. Ltd., to which objection was raised by the Noida, needs to be noted, which is to the following effect: 5.2.1 Approval of Plan submitted for M/s Brys International Private Limited This Resolution Plan is a comprehensive plan submitted for the development of the Project and shall be read in conjunction with the Resolution Applicant s plan submitted for the resolution of M/s Brys International Private Limited under the corporate insolvency resolution process, as the development of the Project and the resultant success of both the resolution plans are dependent on each other. Accordingly, this Resolution Plan is being submitted with the condition that this Resolution Plan shall come into effect only if Resolution Applicant s Plan submitted for the resolution of M/s Brys International Private Limited is approved by Hon ble NCLT and confirmed by the appellate authorities/ forums, in the event of any dispute/ litigation regarding the approval/ implementation of such resolution plan. 19. With regard to Resolution Plan of Brys International Pvt. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Company of the Corporate Debtor. The Appellant not being the creditor of the Corporate Debtor nor stakeholder in the CIRP Resolution Plan could not bind the Appellant in any manner. It is also relevant to notice that development agreement dated 09.09.2010 being an unregistered agreement could not have transferred any right in the lease land in favour of the developer. The Appellant not being party to such development agreement, the same is not binding on Appellant. 21. The learned Counsel for the Appellant has also sought to contend that Adjudicating Authority has no jurisdiction to consider the issues raised by Noida and they have also placed reliance on judgment of the Hon ble Supreme Court in Gujarat Urja Vikas Nigam Ltd. vs. Amit Gupta and Ors. (2021) 7 SCC 209. The Hon ble Supreme Court in the above judgment while considering the ambit and scope of Section 60, sub-section (5) of the Code, laid down following in paragraph 69: 69. The institutional framework under IBC contemplated the establishment of a single forum to deal with matters of insolvency, which were distributed earlier across multiple fora. In the absence of a court exercising exclusive jurisdiction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite Resolution Plan, which was submitted by the Resolution Applicant. The judgment of Hon ble Supreme Court in Gujarat Urja Vikas Nigam Ltd. (supra) has no application in the facts of the present case. We do not find any substance in the submission raised on behalf of the learned Counsel for the RP that Adjudicating Authority had no jurisdiction in the matter. The submission is wholly unfounded and is uncalled from the RP, who is duty bound to ensure that provisions of the Code and Regulations are complied with. When the question that composite Plan submitted by Resolution Applicant for approval, does not fulfil the criteria and is not valid or legal, the RP cannot be heard in saying that issues be not looked into by Adjudicating Authority. All acts of RP should be to ensure that Resolution Plan submitted in CIRP, does not violate any provision of law and is not in contrary to the interest of stake holders. The submission on behalf of learned Counsel for the RP that Adjudicating Authority has no jurisdiction is unfounded submission, which need to be strongly rejected. 23. One of the submissions raised by the learned Counsel for the Appellant is that order of Adjudicating Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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