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TMI Blog2025 (4) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 02.12.2021, had wrongly passed the impugned order. 2. The brief facts of the case as submitted by the appellant are as under : - a) On 07.08.2015 the appellant had acquired ownership rights of an immovable property bearing No.354, Block B, Mangolpuri Industrial Area Phase I, New Delhi by way of a Regd. Sale Deed; b) on 16.12.2016 by way of a Take Over Agreement, Appellant's business in the name of proprietorship concern, namely KPG Industries was taken over by Corporate debtor. In Clause 3, it was mentioned the said property shall devolve upon Corporate Debtor and Appellant shall offer to pledge/mortgage the said property, for and on behalf of Corporate Debtor; c) however, on 17.04.2017 the appellant being a sole owner had mortgaged the property to Oriental Bank of Commerce (now taken over by PNB) so as to secure credit facilities for Corporate Debtor; d) on 27.01.2020 an application under Section 7 of the IB Code was admitted against the Corporate Debtor and CIRP commenced; e) on 26.08.2020 the appellant was in Australia, on account of Covid 19 restrictions. RP preferred an application under Section 19 of the Code being IA No.2715/2020 and the Ld. Counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prayer of the applicant. Accordingly, the prayer of the applicant is hereby rejected. However, it is made clear that by passing this order, we have not decide the merit of agreement arrived in between the parties. The Resolution Professional is at liberty to file an appropriate case before the Competent Court under the relevant provision of law. Accordingly, the present application is dismissed. 4. This order dated 27.09.2024 was appealed against in Company Appeal (AT)(Ins) No.978 of 2021 before this Tribunal and on 02.12.2021 the following order was passed:- We have heard learned Counsel for the Appellant and perused the record. It is not denied that property was in the name of proprietorship firm and could not be transferred in favour of the Corporate Debtor to be the reason which has been given by the Adjudicating Authority. Learned Counsel for the Appellant has submitted that even if the Adjudicating Authority was of the view that direction could not have been issued to the Sub-Registrar, they should have left it open to the Applicant to take such recourse in law as permissible. The view taken by the NCLT with regard to the Application cannot be faulted with. We, however, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 of 2018 decided on 07.01.2025 wherein Hon'ble Supreme Court held as under:- 6. It is well settled that an agreement for sale in respect of an immovable property does not transfer title in favour of the purchaser under the agreement. In view of Section 54 of the Transfer of Property Act, 1882, an agreement for sale does not create any interest in the property. The only mode by which an immovable property worth more than Rs.100/- (Rupees one hundred) can be sold is by a sale deed duly registered in accordance with the Indian Registration Act, 1908. 7. In this case, the NCLAT has recorded a finding that late Shri M.A.Shanmugam who was the owner of the property subject matter of these appeals had agreed to sell the property to the company against the transfer of shares of the company in his favour. The NCLAT has recorded a finding that the company was in possession by way of part performance of the contract. Based on the said finding, the sale deed dated 31st October, 2011 purportedly executed by the legal representatives of late Shri M.A.Shanmugam has been held as not binding on the company. So long as the original owner had not sold the property by execution of a registered sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Similarly, the respondent liquidator too has failed to establish how the 'land' as mentioned in the balance sheet of 2012-13 or 2017 are the same properties which are claimed by the applicant to have been mortgaged to it without any specific details of the said 'land' mentioned therein. Mere reflection of a property as ' land' in the balance sheet does not confer a valid legal title of the same on the CD. This bench is of the view that neither party i.e. the applicant bank nor the respondent liquidator has produced cogent evidence in support of their respective claims" and dismissed the application by recording a finding in para 14 which read as under:- "In the absence of sufficient documents and evidence in support of the legal title of the properties in question, we have no other option but to dismiss the application. Since, we have not decided the issue on merits, the parties are at liberty to approach the civil court or any other appropriate forum to agitate about their right and title over the said properties. 15. The present I.A No. 193 of 2024 is dismissed and disposed off accordingly." 10. And reliance was also placed on Mrs Durdana Abid All and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty of CD in its financial statements. In view of this it cannot be said the Resolution Professional had no power to take possession of the subject property. 17. Further, admittedly a Take Over Agreement dated 16.12.2016 was executed between KPG International Pvt Ltd, viz the Corporate Debtor as well as KPG International, a sole proprietorship firm of the appellant herein. Property bearing No.B354, Block 3 Mangolpuri, Industrial Area, Phase I, New Delhi admittedly was in the name of M/s KPG Industries, a sole proprietorship firm, per its Sale Deed. However, admittedly Take Over Agreement dated 16.12.2016 was executed between the two and a bare perusal of its provisions would reveal the intention of appellant was to pass on the ownership of property unto the Corporate Debtor. The relevant provisions of Take Over Agreement are as under:- 1. That from the date of 16th December 2016 the Parties hereto agree to mutually and constructively adjusted their rights and accounts in the manner that all the Assets and Liabilities of the KPG, as at the closing hours of 15 December 2016, as per the accounts duly signed/endorsed by the Auditors of KPG & by its proprietor namely Mr. Gaurav Mah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f as at 15th December 2016 duly signed by its auditors; 12. That in consideration to take over the business of the firm - KPG owned by Mr. Gaurav Mahendru, the company agrees to issue and allot 297,400 equity shares of Rs. 10 each at par aggregating to Rs. 29, 74,000.00 against the capital of Mr. Gaurav Mahendru and remaining small amount, if any standing to the credit of capital account of Mr. Gaurav Mahendru shall remain as unsecured loan. 14. That no other properties/assets of the Proprietor Mr. Gaurav Mahendru or any of his family members, wherever situated shall devolve to the COMPANY. ( Emphasis supplied ) 18. The relevant clauses of the Takeover Agreement more specifically . Clause 2 says the Corporate Debtor Company will transfer a net amount to the Appellant herein and in lieu of the same, the Appellant would lose all proprietary control/title over his sole proprietary firm; clause 3 says the business of the Appellant as well as the 'subject Property shall be transferred to the Corporate Debtor Company; Clause 7 says the entire operation of the Appellant's business would vest with the Corporate Debtor Company and be carried by the Corporate Debtor Company un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Now if one peruse an order dated 11.09.2020 passed by the Ld. Adjudicating Authority in the CP (IB) No. 2083/(ND)/2019, it notes of a direction to the appellant not to create any hindrance and to cooperate with Resolution Professional for entering into the said Mangolpuri Property which allegedly belong to the Corporate Debtor. The relevant portion of the Order dated 11.09.2020 is excerpted hereinbelow: "The Suspended Board of Director is directed to ensure that IRP on that day is able to enter inside the Corporate Office and no hindrance or obstruction will be created by any person while discharging the duty of IRP". "The Respondent is also directed to mention the facts regarding the compliance of the order passed by us today especially handing over the factory to the IRP in its reply." 25. Vide a subsequent Order dated 23.09.2020 passed by the Ld. Adjudicating Authority in the CP (IB) No. 2083/(ND)/2019, the Ld. Counsel on behalf of the Appellant herein submitted that the subject Property stood handed over to the Resolution Professional by him. The relevant portion of the said Order is herein below : "Mr. Kanwal Chaudhary has appeared on behalf of Suspended Board of Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot loose sight of the fact a suit for specific performance or mandatory injunction etc., may be filed by the Successful Resolution Professional as and when the Plan Approval Application is allowed by the Ld. Adjudicating Authority. Thus at this stage to revert the possession of subject property to appellant, in our opinion, would be putting premium upon the vice and would certainly amount to an unjust enrichment, as the Appellant had already received a consideration of 297,400 equity shares of Rs.10 each at par, aggregating to Rs. 29.74 Lakhs in lieu of the said Takeover Agreement. The Resolution Professional admittedly is in possession of the subject property and just because a formal sale deed has not been executed/registered, does not mean the appellant be handed over the possession of such property which he himself willingly had agreed to transfer, upon receipt of consideration, to company owned and managed by him, viz. the Corporate Debtor. 32. Further we note earlier Order dated 02.12.2021 passed by this Tribunal in CA(AT)(INS) 978/2021 does not help the Appellant because then the Resolution Professional had requested for certain directions to the Sub-Registrar qua the tra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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