TMI Blog2024 (4) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... after coming to know that plan has been approved has filed I.A. No.344 of 2021 questioning the Resolution Plan and decision of the Resolution Professional to treat the Appellant as Operational Creditor. The submission of the Appellant that Section 13-A was inserted in the Act subsequent to lease having been granted to the Corporate Debtor does not in any manner affect the claim of the Respondent No.1 as Secured Creditor. Section 13-A was inserted by U.P. Act 10 of 2016 in The Uttar Pradesh Industrial Area Development Act, 1976 - Any dues of the Authority is a charge as per Section 13-A over the property. The Corporate Debtor has not paid the dues of Respondent GNIDA, which has been brought before the Adjudicating Authority by means of an application giving all relevant details. In the present case, the Adjudicating Authority returned finding that Resolution Professional in its affidavit dated 05.05.2023 has admitted that the Corporate Debtor has committed a default in payment of lease rentals prior to the commencement of CIRP. The submission advanced by the Resolution Professional that charge has not been created under Section 77 of Companies Act has already been dealt and rightly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustrial Development Authority. I.A. No.4588 of 2023 has been disposed of in view of the order passed in I.A. No.4869 of 2022. The order dated 30.08.2022 is thus passed on order passed on I.A. No.4869 of 2022 against which Company Appeal (AT) (Ins.) No.1147 of 2023 has been filed, as noted above. For deciding both the appeals it is sufficient to notice the facts and issues of Company Appeal (AT) (Ins.) No.1147 of 2023. 2. Adjudicating Authority vide its order dated 21.12.2018 admitted CP No. IB-995(ND)/2018 against the Corporate Debtor M/s Primrose Infratech Private Limited. The Appellant Amit Matta was appointed as Interim Resolution Professional and confirmed as Resolution Professional. The Respondent - Greater Noida Industrial Development Authority (GNIDA) has made allotment of Plot No.GH-06, Section CHI-V, Greater Noida to the consortium consisting of M/s Pratham ExpoFab Pvt. Ltd., M/s PSA Impex Pvt. Ltd., M/s Earthcon Constructions Pvt. Ltd. and M/s Ajay Kumar Garg. Registered Lease Deed was executed on 29.11.2011 in respect of said plot in favour of the Corporate Debtor - M/s Primrose Infratech Private Limited. Thereafter, for dues against the lease, demand notices were issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 238 of I B Code was also dealt with and rejected. 6. Learned counsel for the Appellant challenging the order impugned submitted that Greater Noida Authority is not a Secured Creditor and the Adjudicating Authority committed error in holding the GNIDA is a Secured Creditor. Learned counsel for the Appellant submits that Section 13-A was enforced five years after Lease Deed was executed on 29.11.2011. The Adjudicating Authority committed error in holding that there is no conflict between Section 13-A and Section 238 of the IBC. It is submitted that declaring GNIDA as Secured Creditor will harm the interest of the homebuyers. Greater Noida Authority has not registered its charge with Registrar of Companies, hence, it cannot claim to be Secured Operational Creditor. It is further submitted that Section 13A can be relied when recovery notices have been issued by the CEO and no recovery notices have been issued to the Corporate Debtor. 7. Learned counsel for the GNIDA refuting the submissions of learned counsel for the Appellants submits that issue raised by the Appellant is now fully covered by the recent judgment of Hon ble Supreme Court dated 12.02.2024 in Greater Noida Industri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was not addressed by NCLT and NCLAT. In Para 54 and 55 following was held: 54. In our view the resolution plan did not meet the requirements of Section 30(2) of the IBC read with Regulations 37 and 38 of the CIRP Regulations, 2016 for the following reasons : a. The resolution plan disclosed that the appellant did not submit its claim, when the unrebutted case of the appellant had been that it had submitted its claim with proof on 30.01.2020 for a sum of Rs.43,40,31,951/- No doubt, the record indicates that the appellant was advised to submit its claim in Form B (meant for operational creditor) in place of Form C (meant of financial creditor). But, assuming the appellant did not heed the advice, once the claim was submitted with proof, it could not have been overlooked merely because it was in a different Form. As already discussed above, in our view the Form in which a claim is to be submitted is directory. What is necessary is that the claim must have support from proof. Here, the resolution plan fails not only in acknowledging the claim made but also in mentioning the correct figure of the amount due and payable. According to the resolution plan, the amount outstanding was Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing statutory flavour, there has to be a closer examination of the plan's feasibility. Here, on the part of the CD there were defaults in payment of instalments which, allegedly, resulted in raising of demand and issuance of pre-cancellation notice. In these circumstances, whether the resolution plan envisages necessary approvals of the statutory authority is an important aspect on which feasibility of the plan depends. Unfortunately, the order of approval does not envisage such approvals. But neither NCLT nor NCLAT dealt with those aspects. Relief 55. As we have found that neither NCLT nor NCLAT while deciding the application /appeal of the appellant took note of the fact that, (a) the appellant had not been served notice of the meeting of the COC; (b) the entire proceedings up to the stage of approval of the resolution plan were ex parte to the appellant; (c) the appellant had submitted its claim, and was a secured creditor by operation of law, yet the resolution plan projected the appellant as one who did not submit its claim; and (d) the resolution plan did not meet all the parameters laid down in sub-section (2) of Section 30 of the IBC read with Regulations 37 and 38 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntinued simultaneously. 12. Any dues of the Authority is a charge as per Section 13-A over the property. The Corporate Debtor has not paid the dues of Respondent GNIDA, which has been brought before the Adjudicating Authority by means of an application giving all relevant details. In the present case, the Adjudicating Authority returned finding that Resolution Professional in its affidavit dated 05.05.2023 has admitted that the Corporate Debtor has committed a default in payment of lease rentals prior to the commencement of CIRP. In Para 18 of the order following has been held: 18. In the instant case, the Respondent/RP vide its affidavit dated 05.05.2023 has admitted that the Corporate Debtor had committed a default in payment of lease rentals prior to the commencement of CIRP. Hence, the same qualifies to be a default in terms of Section 13 of the UPIAD Act 1976. Further, it is observed that in terms of Section 13-A of the UPIAD Act 1976, any amount payable to the Authority under Section 13 will constitute a Charge over the property. 13. The submission of the Appellant that no recovery notices have been issued by CEO has no relevance since statutory charge is created as soon as a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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