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TMI Blog2023 (3) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... for R-1/Noida Authority. For the Appellant : Mr. I.P.S. Oberoi and Mr. Himrit Singh Wadhwa, Advocates For the Respondent : Mr. Sourav Roy, Mr. Prabudh Singh, Mr. Kaushal Sharma, Mr. Vishal Malik, Advocates for Noida Authority. For the Appellants : Ms. Tripti Kapoor and Mr. Rahul Malhotra, Advocates. For the Respondents : Mr. Sourav Roy, Mr. Prabudh Singh, Mr. Kaushal Sharma, Mr. Vishal Malik, Advocates for R-1/Noida Authority. JUDGMENT ASHOK BHUSHAN, J. These three Appeal(s) have been filed against the same order dated 21.02.2022 passed by the National Company Law Tribunal, New Delhi Principal Bench in C.A. No.2488/2019 in CP (IB) 875 (PB)/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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yet parallel Resolution Plan for the CIRP of Neo Infrastructure Pvt. Ltd. and Brys International Pvt. Ltd. (viii) On 13.11.2019 an CA No.2488 of 2019 was filed by Respondent No.1 - NOIDA, where a direction was sought, not to accept the Resolution Plans, which propose a composite Scheme for Neo Infrastructure Pvt. Ltd. and Brys International Pvt. Ltd. A prayer was also made to stay on the voting of the Resolution Plan, which was submitted by M/s. E-Homes Infrastructure Pvt. Ltd. The Application was opposed by the RP, who filed a reply to the Application. (ix) Subsequent to the filing of Application by NOIDA, both the 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 als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Lease and Sub-Lease. The Collaboration Agreement, which was executed by Neo Infrastructure Pvt. Ltd. in favour of Brys International Pvt. Ltd. was in violation of the terms of the Sub-Lease. No approval of Respondent No.1 - NOIDA was obtained before transferring the development and sale rights in favour of Brys International Pvt. Ltd. The Collaboration Agreement executed by Sub-Lessee in favour of Brys International Pvt. Ltd., it transferred all rights including right to sell. The land which was leased out by the NOIDA, of which Noida continued to be the owner, could not be made asset of Corporate 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 De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion without assigning any reason whatsoever. In addition to the transfer charges as per prevailing policy of the LESSOR, the sub-lessee shall also pay an amount of Rs. 10,000/- towards the processing fees. All the terms and conditions of the brochure, the allotment, the permission for grant of transfer, lease deed etc. shall be. binding on the sub-lessee, as well, as the transferee(s). No transfer charges shall be payable in case of transfer between son, daughter, husband, wife, mother, father and vice-versa, However, processing fee of Rs, 10,000/- will be payable on such transfer. 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 fulfillme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. and Brys International Pvt. Ltd. No prior approval was obtained from NOIDA for transferring of the rights by Neo Infrastructure Pvt. Ltd. in favour of Brys International Pvt. Ltd. In the Collaboration Agreement, development of sales rights were transferred to developer, i.e., Brys International Pvt. Ltd. on consideration. Clauses 3 and 4 of the Collaboration Agreement is as follows: "3. GRANT OF DEVELOPMENT AND SALES RIGHTS The Company in order to collaborate hereby transfers Development and Sales Rights of the Company Demised Plot 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite 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 existing policy as far as the present plot allotted to the Corporate Debtor is concerned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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., Clause 5.2.1 is again to the same effect and reads as under: "5.2.1 Approval of Plan submitted for M/s Neo I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 over matters relating to insolvency, the corporate debtor would have to file and/or defend multiple proceedings in different fora. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra) 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 Authority is not clear. When the Adjudicating Authority has allowed CA No.2488 of 2019 filed by the Noida, the clear intendment of the order is that sub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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