TaxTMI 
TaxTMI 
2019 (7) TMI 10
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....the Scheduled property of 7.5 cents as DISCLAIMED ii. Treat this scheduled property of 7.5 cents as falling within the purview of Section 36(3) (c) and (h) of the Insolvency and Bankruptcy Code, 2016 and permit the Liquidator to sell the scheduled property of 7.5 cents and appropriate the proceeds as per Code and or/regulations formed thereunder. iii. Direct the Respondents to handover immediately, the scheduled property's title deed and all its concerned papers, to the Liquidator. 2. The factual matrix of the case is that the Corporate Debtor has constructed the factory and its structures by developing the land comprised in: i. S. No. 244/1A, 244/2A, 244/4A1., 244/4A3 admeasuring about 2.93 a....
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....arcel of land of 7.5 cents has the onerous characteristics as, event hough its ownership rests with both the Respondents (and who also stand as guarantors to the Financial Creditor), the same has been developed by the Corporate Debtor and is in possession of the Corporate Debtor and thus attract provisions for being declared a disclaimed property under rule 10(1) (a) of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016. The liquidator has further submitted that it is not saleable for the reason that the Corporate Debtor, the possessor thereof, is bound to the performance of the Respondents. 6. The Respondents have filed counter stating therein that the value of the assets of the Liquidation Company may ....
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....f the Respondents are also entitled for the share in the property. Therefore, the contention of the liquidator that the property sought as disclaimed is not correct and the application seeking for the inclusion as the factory land does not arise. 10. The Liquidator has submitted in Rejoinder that the land of 7.5 cents and the compound wall on its north and western boundaries are absolutely essential for the smooth transport and for maintaining even shape and remains an essential requisite to the Corporate Debtor. The aforesaid requirement and need have also been explicitly acknowledged by the Respondents in sale deed dated, 09.02.2015 placed at page 9 of the counter. 11. The Liquidator has submitted that by the letter dated 17.07.2018....
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.... also contended that in the sale deed, nowhere a mention of a Joint family or the source to be of joint family funds have been brought out. Further, no proof of such sources have been listed. Hence the statement that this property is a joint family property, purchased out of the proceeds belonging to their father is not maintainable. 15. The perusal of the pleadings gives rise to the issue as to whether the property admeasuring 7.5 cents under survey No. 243/6 can be declared as "Disclaimed" under rule 10 (1) (a) and (c) of the IBBI (Liquidation Process) Regulations 2016 for being treated as part of the liquidation estate. 16. The relevant provision of the Regulation is extracted below;- "10. Disclaimer of onerous property. ....
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....he additional land more fully described in 'B' Schedule." (Emphasis supplied) 18. From the above stated recital of the sale deed, it becomes clear that land measuring 7.5 cents was purchased by the Promoters/Directors for easy and proper use of the land measuring 2 acres and 93 Cents, which is the landed property of the Company under liquidation. The property i.e., 7.5 cents has been under use and occupation of the Company under liquidation since its purchase by the Promoters/Directors of the Company. In other words the land measuring 7.5 cents is vested with the Company. 19. The Liquidator further contended that the land i.e., 7.5 cents and the compound wall on its north and western boundaries are absolutely essential for th....
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.... documentary evidence except the sale deed which supports the contention of the Applicant/liquidator. Therefore, the contentions of the respondents stand rejected. 21. In case the sale deed dated 09.02.2015 is taken into consideration, then it becomes clear that the land measuring 7.5 cents as per the Schedule annexed with the sale deed was purchased for facilitating the use of the landed property of the Company measuring 2.93 acres and to set straight the uneven shape of the said property. If the property measuring 2.93 acres is to be sold then it will be the need of the buyer [as was of Promoters/Directors of the Corporate Debtor] to have 7.5 cents for proper use of the landed property of the Company under liquidation. 22. In view o....