9911796707
TMI Blog2023 (10) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... t No.1 filed an application being IA (IB) No. 1007 of 2023 in CP(IB) No. 372/KB/2019 seeking the following reliefs: "a. Allow the instant application. b. Direct Respondent No.1 to not interfere in the peaceful physical possession of area consisting of 10000 sq. ft. of land situated at Khatian No. 1523.1524 in Mouza Ramrajatala Thana Jogacha, District Howrah, West Bengal along with right of ingress of Containers of exportable goods and movement of all vehicles from the main entry gate. c. Direct the Respondent No.2 to not put a padlock on the entry gate to the said property. d. Pass an order directing for status quo to be maintained as regards the right of usage of the said property during the pendency of the instant application. e. Direct the Respondent No.1 to get the demarcation of the area of 10000 sq. ft. to be utilised by the Applicant along with area of ingress and egress. f. Pass any such orders as may be deemed fit, proper and necessary in the instant case." 3. However, the Appellant has claimed that without even affording an opportunity of hearing to the Appellant herein, being the contesting Respondent before the Adjudicating Authority in the aforesaid Applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur of the Corporate Debtor. Moreover, an amount of Rs. 3.50 Crores was advanced by the Corporate Debtor to Respondent No.2 over and above the amount of 12 crores already remitted by the Corporate Debtor. For the purpose of protecting the interest of the Corporate Debtor, including repayment of the amount disbursed by the Corporate Debtor to the tune of around Rs. 12 Crores, it was agreed that 40% shares of the Respondent No.2 would be transferred in favour of the Corporate Debtor which were to be transferred back in favour of the then shareholders of the Respondent No.2 upon completion of the development of the said land. 4.4 It had also been agreed upon in the aforesaid MOU that Respondent No.2 and the Corporate Debtor would enter into a definite agreement for undertaking the development of the said land within a period of one month of such acquisition. 4.5 Upon development of the said land, out of the total constructed area, 60% of the constructed area were to belong to the Corporate Debtor and the remainder of the 40% of the constructed area were to belong to the Respondent No.2. In furtherance of the object of the MoU, a shareholders agreement was entered into between Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he urban land (ceiling and Regulation Act), 1976 in respect of the said land which were absolutely critical and imperative for the Corporate Debtor for the purposes of commencing any development works on the said land. 4.9 Since the land was lying vacant and idle it was decided that a portion admeasuring 10,000 sq ft. of the said land (licensed Area) would be licensed to Victory Iron Works Ltd., i.e. Respondent No.1 for a term of 11 months commencing from 19.08.2011 for a license fee of Rs. 5,000/- per month. This was finalized by way of a Leave and License Agreement dated 19.08.2011 executed between the Corporate Debtor (as Licensor) and the Respondent No.1 (the Licensee) with Respondent No.2 standing in as the confirming party. The Leave and License Agreement expired by efflux of time on 18.07.2012 and was never renewed. It is relevant to note that Respondent No.1 has failed to pay the license fee to the licensor (The Corporate Debtor). Therefore, Respondent No.1 in the teeth of the leave and license Agreement continues to occupy the licensed Area, till date in a manner which is in breach of any contrary to the license granted by the Corporate Debtor. 4.10 On 15.10.2019, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perties; (iv) the Development Agreement dated 16.06.2008; (v) the Memorandum Recording Possession dated 02.03.2010 executed by the original shareholders of Energy Properties; (vi) the Memorandum Recording Possession dated 24.06.2010 executed by Energy Properties in favour of the Corporate Debtor; and (vii) the Leave and License Agreement primarily executed by the Corporate Debtor in favour of Victory, which was merely confirmed by Energy Properties as a confirming party. Some of these bundle of rights and interests, partake the character and shade of ownership rights. Therefore, these rights and interests in the immovable property are definitely liable to be included by the Resolution Professional in the Information Memorandum and the Resolution Professional is duty bound under Section 25(2)(a) to take custody and control of the same. ... ... 48. As we have seen earlier, two applications were filed before NCLT. One was by the Resolution Professional and the other was by Victory. A careful look at the application filed by Victory in C.A. (IB) No.146 of 2020 would show that there was no whisper about Victory occupying any land in excess of what they were permitted to occupy und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Licensed Area which is currently in use by the Respondent No.1 4.14 Despite offering unrestricted egress and ingress to big vehicles including containers carries and trucks, Respondent No.1 filed an application being IA (IB) No. 1007 of 2023 in CP(IB) No. 372/KB/2019 seeking the following reliefs described in supra. 5 Appellant claims that by way of the aforesaid order, the Adjudicating Authority by way of a non-speaking order, directed the Appellant to provide access to the Licensed Area to Respondent No.1 in a stark contradiction to the order of the Hon'ble Supreme Court dated 14.03.2023, which expressly notices that Respondent No.1 is merely a licensee whilst directing the Appellant to take custody and control of the said land. Even otherwise, it is submitted that the Agreements read as a whole do no brook occupation of the said land by the Respondent No.1 in the manner as has been done by it. Submissions of the Appellant 6 The Appellant herein has development rights on a piece of land admeasuring 10.19 acres situated at Ramrajatala, Howrah by way of several agreements entered in between Respondent No.2 (Energy Properties Private Limited) and the Corporate Debtor. The rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is submitted that Respondent No.1 pressed into service Section 13(e) of the Indian Easement Act, 1882 before the Adjudicating Authority at the time of hearing the aforesaid application and it was after taking into consideration the said provision that the Adjudicating Authority, at an ad interim stage, before the Appellant was even permitted to file its response, pleased to pass the impugned order in effect allowing the substantive relief sought in the Application by Respondent No.1. 10 It is also submitted by learned Counsel for the Appellant that the Respondent No.1 whilst making specious and inaccurate pleas in the aforesaid Application has misled the Adjudicating Authority to the extent of going against the grain of findings of the Hon'ble Supreme Court in the aforesaid judgment and order dated 14.03.2023. It is submitted that the Adjudicating Authority by the impugned order has permitted Respondent No.1 to access the property as he was enjoying pursuant to the earlier order passed by the Adjudicating Authority on 12.02.2020 and this Appellate Tribunal on 04.03.2020. Therefore, once again permitting Respondent No.1 to access the property the way it had been enjoying prior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not issue any new direction and thus, the Appellant at this stage cannot be said to be aggrieved by the impugned order. It is noteworthy that the Appellant did not challenge the order dated 12.02.2020 as passed by the Adjudicating Authority in CA No. 1807/2019, order of this Tribunal dated 04.03.2020 and 08.04.2021 and hence, the said order have attained finality and no challenge can be preferred by the Appellate at this stage, when the directions passed earlier have only been reiterated by the Adjudicating Authority. Thus, restraining the Appellant from acting contrary to the order passed by this Tribunal and Hon'ble Supreme Court cannot be said to be grievance of the Appellant, when such orders were not challenged by the Appellant at the appropriate time, hence, the Appeal of the Appellant is legally untenable and without cause of action. 13. It is also submitted by Learned Counsel for the Respondent no.1 that since no development / construction was carried out by the Corporate Debtor at the aforementioned land, the Respondent No.1 herein with the permission of Corporate Debtor and the Respondent No.2 and under a verbal contractual arrangement occupied entire area of the af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Respondent no. 1 herein and also upheld the direction of the Adjudicating Authority that the possession and occupation of the Respondent herein over the land of the extent of 10,000 sq ft. covered by the Leave and License Agreement dated 11.08.2011, shall continue to be enjoyed by the Respondent without any interference from the Appellant. The Appellant also did not challenge the aforementioned order of this Tribunal dated 04.03.2020 and 08.04.2021, wherein this Tribunal has continued to protect the right of Respondent herein to enjoy, occupy and carry out its business activities from part of aforementioned land admeasuring 10,000 sq. ft. The Respondent herein being aggrieved by the order of this Tribunal dated 08.04.2021, filed an appeal before the Hon'ble Supreme Court under Section 62 of the Code being Civil Appeal No. 1743 of 2021 and the same was dismissed. 17. It is further submitted that in order to approach the backside gate from the main road and vice versa, the trucks have to enter into narrow path of Howrah Homes road, which is not more than 13 feet wide (which also includes 5 feet of encumbrances on both the sides) and is merely impossible for any small commercia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a. Observations and findings 20. Basis the appeal and also the written and oral submissions of Appellant and Respondents, it emerges that : 20.1. Hon'ble Supreme Court vide its Judgment dated 14.03.2023 recognizes Respondent No 1 (M/s Victory Iron Works Ltd.) as a licensee only with respect to the demarcated area of 10,000 Sq. feet out of total land of about 10.19 acres. Respondent No. 1 is just a licensee and licensee doesn't create any interest in the immoveable property. On the other hand Appellant has a bundle of rights and interests. Some of them partake the character and shade of ownership rights. 20.2. Respondent No 1 has been a signatory of Leave and License Agreement dated 19.08.2011 but the words in the impugned orders of 04.07.2023 "...recognizing the applicants' right to possess and continue business operation in the 10000 sq.ft. of demarcated property..." gives an erroneous impression of possession instead of just being a licensee. 20.3. There are two gates - one main gate and the back gate which is close to the area admeasuring 10,000 sq ft. Respondent No.1 has been provided the access from the back gate, which is closer to this portion of the land. If ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
