2022 (7) TMI 312 - Tri - Insolvency and Bankruptcy

Tribunal nullifies lease deed, deems transactions preferential, restrains trademark use

Bank of India Versus Sri Balaji Forest Products Private Limited And Aditya Kumar Tibrewal, Resolution Professional of Sri Balaji Forest Products Private Limited Versus Om Prakash Pandey & Ors.

The Tribunal declared the lease deed dated 30th November 2016 null and void, finding it fraudulent and illegal. It set aside the lease deed under relevant ... Validity of Lease deed - seeking reversal of transaction - execution of lease deed is in the nature of transaction as described in Section 45 of the I & B Code, 2016 or not - seeking cancellation of lease deed - seeking direction to make differential lease consideration payment after determination of market value of annual lease consideration of the premises - preferential related party payments - seeking to furnish a list of inventories of the infringing goods and the sale register of the infringing goods sold by Respondent Nos. 3 to 5 - Section 66 of the I & B Code, 2016 - HELD THAT:- This Adjudicating Authority is of the view that from the documents made available in the application and subsequent pleadings, the applicant/ resolution professional has successfully shown that the lease deed dated 30th November 2016 is grossly undervalued to the detriment of the creditors of the corporate debtor. Furthermore, by virtue of the said lease deed dated 30th November 2016, the Applicant/ Resolution Professional has also been successful to show that the entire business of the corporate debtor has been transferred to a related party to corporate debtor, being Respondent No. 3. Without even considering the aforesaid facts, the applicant/ resolution professional has been successful in showing that the lease deed dated 30th November 2016 itself is grossly fraudulent, illegal and void ab initio in as much as the same has been executed after the issuance of the notice under Section 13 (2) of the SARFAESI Act, 2002 in light of Mannalal Khetan v. Kedarnath Khetan [1976 (11) TMI 135 - SUPREME COURT]. The lease deed dated 30th November 2016 has been executed fraudulently and is grossly undervalued in order to defraud the creditors of Corporate Debtor and accordingly the such act of respondents is liable to be prosecuted under Section 45, Section 49 and Section 66 of the I & B Code, 2016. Accordingly, the lease deed dated 30th November 2016 is hereby set aside by this Adjudicating Authority in light of the powers conferred under Section 45, Section 49 read with Section 66 of the I & B Code, 2016. In addition to the above, the Respondent Nos. 6 and 7 have failed to appear and/ or place their submissions before this Adjudicating Authority. In the absence of any justification to the transactions entered into with related parties, being Respondent Nos. 6 and 7 within the lookback period, the said transactions fall under the ambit of Section 43 of the I & B Code, 2016 and accordingly, Respondent Nos. 6 and 7 are hereby directed to make payments of Rs. 11,10,000/- and Rs. 5,50,000/- respectively for being related party preferential transactions under Section 43 of the I & B Code, 2016. Infringement of trademark - HELD THAT:- This Adjudicating Authority refuses to interfere in disputes arising out of Intellectual Property Rights. However, we make it clear that in the absence of any valid agreement assigning the trademark of corporate debtor in favour of respondent no. 3, the respondent no. 3 is hereby restrained from using the property of the corporate debtor. The present application is allowed in terms of the directions stated and the Respondent Nos. 3 to 5 are hereby directed to handover peaceful, vacant, undisturbed and unhindered access to the plant, factory, land, building, shed and premises located within the 17.25 acre of land to the resolution professional/ applicant. Issues Involved:1. Validity of the lease deed dated 30th November 2016.2. Preferential related party transactions.3. Infringement of trademark.4. Jurisdiction of the Adjudicating Authority in light of PMLA proceedings.Issue-wise Detailed Analysis:1. Validity of the Lease Deed Dated 30th November 2016:The application was filed under Sections 43, 45, 49, and 66 of the Insolvency and Bankruptcy Code, 2016, seeking to declare the lease deed executed on 30th November 2016 as null and void. The Resolution Professional argued that the lease deed was grossly undervalued, transferring the entire business of the Corporate Debtor (CD) to a related party, Respondent No. 3, for a meagre annual rent of Rs. 1,80,000, despite the land's market value being Rs. 42.39 Crore. The Tribunal found the lease deed to be fraudulent, illegal, and void ab initio, executed after the issuance of a notice under Section 13(2) of the SARFAESI Act, 2002. The lease deed was set aside under Sections 45, 49, and 66 of the I&B Code, 2016.2. Preferential Related Party Transactions:The Resolution Professional identified numerous related party transactions with M/s. Shree Ram Saw Mill Private Limited (Respondent No. 6) and M/s. Shova Properties Pvt. Ltd. (Respondent No. 7), amounting to Rs. 16,60,000. Due to the non-cooperation of the suspended board of directors, the transactions were deemed preferential. The Tribunal directed Respondent Nos. 6 and 7 to make payments of Rs. 11,10,000 and Rs. 5,50,000 respectively for being related party preferential transactions under Section 43 of the I&B Code, 2016.3. Infringement of Trademark:The Resolution Professional contended that Respondent No. 3 was using the CD's trademark 'AEON' without any license or right, thereby infringing the intellectual property rights of the CD. The Tribunal refused to interfere in disputes arising out of Intellectual Property Rights but restrained Respondent No. 3 from using the trademark 'AEON' in the absence of any valid agreement assigning the trademark to them.4. Jurisdiction of the Adjudicating Authority in Light of PMLA Proceedings:The Respondents challenged the maintainability of the application, citing provisional attachment orders under the Prevention of Money Laundering Act, 2002 (PMLA). The Tribunal clarified that the property under provisional attachment was different from the property in dispute in the present application. The Tribunal also noted that an appeal under Section 26 of the PMLA, 2002, and an application under Section 8(8) of the PMLA, 2002, had been filed for the restoration of CD's assets. The Tribunal held that the reference to provisional attachment was baseless and without merit.Judgment:The Tribunal allowed the application, setting aside the lease deed dated 30th November 2016, directing Respondent Nos. 6 and 7 to make payments for related party preferential transactions, and restraining Respondent No. 3 from using the CD's trademark. Respondent Nos. 3 to 5 were directed to hand over peaceful, vacant, undisturbed, and unhindered access to the plant, factory, land, building, shed, and premises located within the 17.25 acres of land to the Resolution Professional. The application was disposed of in terms of the directions stated.