TMI Blog2023 (7) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... which judgement has been delivered only today i.e. 24th July, 2023, there is no need to go further in detail and this appeal in terms of judgement passed in Company Appeal (AT)(Ins) No.839/2022 and 861/2022 stands dismissed. In this appeal also the appellant has placed on record two lease rent agreements vide Annexure A-2 and A-3 - Let a copy of this order be also communicated to the Delhi Police Commissioner for its needful with a direction to the learned Registrar of this Tribunal to render full assistance and providing necessary documents as and when approached by the Delhi Police doing enquiry or investigation. - COMPANY APPEAL (AT) (INS) NO. 860/2022 - - - Dated:- 24-7-2023 - ( Justice Rakesh Kumar ) Member ( Judicial ) And ( Dr. Alok Srivastava ) Member ( Technical ) For the Appellant : Mr Abhijeet Sinha, Mr Aryan Chakraborty, Mr Akash Chatterjee, Ms Sohini Mukherjee, Advocates For the Respondent : Mr KV Balakrishnan, Advocate for R1. Mr. P. Nagesh, Sr. Advocate, Ms Neha Tandon, Mr Akshay Sharma, Advocates for R2. Ms Greeshma Beebireddy, Advocate for R3 JUDGEMENT JUSTICE RAKESH KUMAR, MEMBER ( JUDICIAL ) The present appeal has been preferred u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 49 of the Code restoring the position as it existed before any so called rent agreement was entered into as if the transaction has not been entered into; g. Such other order providing relief under section 49 of the Code protecting the interests of the creditors of the Corporate Debtor including Vijaya Bank (now Bank of Baroda) who are victims of such transaction; 2. This Interlocutory Application being IA (IB) No. 1302/KB/2020 has been filed by Mr.Niraj Agrawal, Resolution Professional/Applicant under section 18(1)(f)(ii) read with section 25(2) and 60(5)of the Insolvency and Bankruptcy Code, 2016 and under Regulation 30 of the Insolvency and Bankruptcy Board of India ( Insolvency Resolution Process for Corporate Persons) Regulation, 2016 for the following reliefs; a. An order be passed directing the respondent to obey the order dated 18 th March, 2020 passed by this Adjudicating Authority in C.P.(IB) No.438/KB/2020 towards its implementation; b. An order directing the respondent not to obstruct the sole and exclusive physical possession of the said property by the RP, the applicant herein; c. Direction upon the local district administration being the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Guarantee. In March 2018, the FC had filed an application u/s 7 of IBC, 2016 against CEPL. The said application was admitted on 18.03.2020 directing insolvency commencement in respect of CEPL and Applicant was appointed as Interim Resolution Professional ( IRP ), later confirmed as the Resolution Professional ( RP ) in the first Committee of Creditor ( CoC ) meeting dated 18.08.2020 and concluded on 19.08.2020). (b) The principal asset of CEPL is an industrial freehold land admeasuring 2.209 acre comprised in Plot Nos. R.S. 3205, 3206, 3208 and 3203/4633 situated at Mouza-Gopalpur, J.L. No. 2, P.S. Rajarhat, in the district of 24 Parganas (North) 5 within Rajarhat-Gopalpur Municipal Corporation (the subject land ), which was furnished as security for repayment of the financial debt of TCL being the Corporate Guarantor of TCL. (c) Records of the Corporate Debtor revealed that much after filing the said application u/s 7 of IBC, 2016 before this NCLT for initiation of the Insolvency Proceedings, CEPL had entered into a purported unstamped unregistered Rent Agreement on 26.07.2019 with one T-RMC Pvt. Ltd. (T-RMC), whereby a lease hold interest over 1.90 acres o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the books of accounts of the CD on 09.10.2020. The said Transaction Auditor submitted its Report on 23.12.2020 confirming undervalued transaction. (h) As per the Audit Report, the fair rent of the said land was determined at Rs. 4.85 lakhs per month against Rs. 55,000/- per month as stipulated charged under the Rent Agreement. It has been pointed out that the period beginning from 18.03.2018 to 17.03.2020 falls within look back period u/s. 46(1)(ii) of the Code for the purpose of Section 45 of the Code, resulting in the undervalued transaction of Rs. 1.032 crore for the period under reference. (i) The present proceeding for declaring the said agreement between CD and Respondent void, and reverse the effect of such transaction under the Code, owing to the same being an undervalued transaction perpetuated with malafide intention to defraud the secured creditors, by keeping the asset beyond their reach. (j) The impugned transaction vide 2014 Agreement was covered within the purview of Section 46 (1) (ii) of IBC. (k) The RP has further contended that It has been brought on record by the RP that at the relevant time of execution of the 2014 Agreement, the CD and T-RMC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice under Section 13(2) of SARFAESI Act on 10.03.2014. Soon after issuance of the notice under Section 13(2) of the SARFAESI Act, T-RMC (initially named Tantia RMC Pvt. Ltd.) was incorporated on 17.07.2014, wherein Harshvardhan Tantia was its director having 50% shareholding therein. Immediately upon incorporation of T-RMC, the purported Agreement was entered into by and between CD and T-RMC on 26.07.2014, where by possession of 1.90 acres out of the total 2.209 acres of the subject land was divested to T-RMC. The said Agreement misrepresents that the subject land was free from all encumbrances in any manner whatsoever. (c) It would be evident from the above course of event that the impugned arrangement was created with a motive to encumber the subject land post-receipt of a Section 13(2) notice with the sole mala fide intention of defrauding its creditors by keeping the said asset out of the clutches of Vijaya Bank. (d) The purported transaction was in patent derogation and contravention of Section 13(13) of SARFAESI Act, rendering such transaction a nullity and void abinitio as held by the Hon ble Apex Court in the matter of Bajrang Shyamsunder Agarwal v. Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eption as held in by the Hon ble Supreme Court of India in Anuj Jain v. Axis Bank Ltd. Ors., (2020) 8 SCC 401@ prs. 28.2-28.6. (l) The applications filed correctly within the purview of IBC and CIRP Regulations for the following reasons: The IBC does not stipulate any timeline for filling an Application under Sections 43 to 51 and/or Section 66 of the Code. The wordings of Regulation 35A of CIRP Regulations are not mandatory but directory in nature. Accordingly, timeline stipulated under Regulation 35A of the CIRP Regulations are directory in nature and does not render any application filed beyond the prescribed time frame to be invalid, non-est and/or un-actionable. (Refer Aditya Kumar Tibrewal v. Om Prakash Pandey, 2022 SCC OnLine NCLAT 142 at paragraph 11 (xiii), page 11. 10. In counter to the submissions of the RP, the principal defence of the Respondent T-RMC has been three-fold: (i) that the allegations have been filed in contravention to the timelines stipulated under Regulation 35A of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 ( CIRP Regulations ), (ii) the Transaction Audit Report is erroneous in nature and should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be at liberty to take appropriate step against T-RMC for their eviction and realisation of the said dues in the event their failure to comply this order. The said I.A. (IB) 107/KB/2021 and I.A.(IB) 1302/KB/2020 are thus allowed with the directions as above. I.A.(IB)/429/KB/2022 15. This application has been moved by one Mahesh Kumar Khaitan, applicant who sought a complete copy of all the Resolution Plans that had been submitted by the prospective resolution applicants with the Resolution Professional in the CIRP of the Corporate Debtor. It is submitted that the Resolution Professional, however, had categorically refused to provide a copy of the Resolution Plans on the ground that the Resolution Plans have been placed before the CoC in its meetings and since suspended board did not attend such meetings and that a Resolution Plan has been approved by the CoC, which is pending for approval before this Adjudicating Authority. Therefore, the applicant had moved this application. 16. We have considered the submissions made by the applicant in the application and heard the Ld. Counsel appearing for the applicant, we do not find any substance in the application. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 1st Civil Judge, Junior Division at Barasat and moved an application under Order XXXIX Rules 1 and 2 read with Section 151 of the CPC praying for interim temporary injunction. The Learned Civil Judge by its order dated 27.11.2020 was pleased to restrain the Corporate Debtor from disturbing peaceful possession of the appellant in respect of subject land. The appellant in its pleading has stated that sometime in November, 2020 the Respondent/RP filed an application being IA(IB) No.1302/KB/2020 in CP(IB)438/2018 under Section 18(1) (f)(ii) read with Section 25 (2) and Section 60(5) of IBC under Regulation 30 of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 praying therein for removal of the appellant of all materials or assets from 1.90 acres of land in question which was replied by the appellant. It is further case of the appellant that sometime in January, 2020 the Respondent/RP filed another application being IA(IB) No.107/KB/2021 in CP(IB) No.438/KB/2018 under Section 45 read with Section 49 of IBC alongwith Rule 11 of NCLT Rules, 2016 praying therein for order declaring that the agreement dated 26.07.2019 untenable and to reverse the transactio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He further submits that the lease agreement was for five years but it was not registered. The lease agreement was signed on behalf of the Corporate Debtor by one of its directors Mr. Jaydip Ghosh and on the other hand on behalf of the tenant it was signed by one of its director Mr. Harshvardhan Tantia. Mr. Harshvardhan Tantia at the relevant time was also having shareholding in the Corporate Debtor company. Mr. Jaydip Ghosh, who executed the lease rent agreement was not authorised by the resolution of the Board of Directors of the Corporate Debtor. According to Mr. Balakrishnan the said lease rent was fraudulent agreement for the purpose of illegal gain and an illegal loss to the financial creditor. He submits that from the Transaction Report also it is evident that monthly rent of Rs.55000/- was nothing for the land in question since in the report the market rent has been assessed to the tune of Rs.4,85,000/- per month. He has taken us to running page 473 which is part of the Transaction Audit Report. 5. Mr. P. Nagesh, Learned senior counsel appearing on behalf of Respondent No.2, Successful Resolution Applicant has also supported the impugned order and he has questioned the ve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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