2021 (7) TMI 715

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....he 4th meeting of CoC on 21.10.2019. Further prayer of the applicant is to quash and set aside all proceedings and decisions taken in the 6th meeting of CoC held on 17.12.2019 and all consequential actions/decisions. The Applicant also seeks replacement of the present Resolution Professional Sh. Anil Matta and initiate action against him for changing the status of the applicant GNIDA from financial creditor to operational creditor resulting in financial loss to a Govt. Authority/GNIDA. 2. The facts as submitted by the applicant/GNIDA are as follows: i. GNIDA is a statutory Authority constituted under the provisions of the U.P. Industrial Area Development Act, 1976 for performing the functions as set out in the said enactment. The applicant was also impleaded as respondent No. 2 in the above Company Application No. 1511/2019, in Company Petition No. IB-995(ND)/2018. ii. The applicant has submitted that it is the owner of the land. The applicant through a sealed Two-bid system had awarded/allotted the land to a Consortium consisting of M/s. Pratham Expo Fab Pvt. Ltd. (Lead Member), M/s. PSA Impex Pvt. Ltd. (Relevant Member), M/s. Earthcon Constructions Pvt. Ltd. ....

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....ured Financial Creditor both in respect of the premium i.e. cost of the land allotted on lease basis and the lease rent. v. It is further contended by the Applicant that the Authority has filed its claim in Form 'C with the Resolution Professional Mr. Anil Matta (respondent) and in the 4th CoC meeting held on 21.10.2019, GNIDA was undisputedly accepted as the Financial Creditor and thus, the applicant/Authority cannot be declared as Operational Creditor. The applicant-Authority/GNIDA has already filed the proof of claim being the Financial Creditor with Mr. Anil Matta, Insolvency Professional in September/October, 2019. It was held that the Authority/GNIDA is a Financial Creditor. However, the Ex-Directors of the Corporate Debtor had filed a CA No. 1511/2019 praying that GNIDA and UCO Bank be deleted as a financial creditor and excluded from the membership of CoC. No service of the CA No. 1511/2019 was effected on the applicant/GNIDA. No affidavit of service was filed yet an impression was given to the Hon'ble Tribunal that despite service none appeared for GNIDA on 25.11.2019. The applicant/GNIDA was served on 25.11.2019. Thereafter, the applicant/GNIDA has filed ....

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....er observe that this Adjudicating Authority, after considering the submissions of the applicant as well as RP and the decisions referred by the parties, passed a detailed order dated 28.02.2020 and confirmed the decision of the RP, to treat the applicant as an Operational Creditor instead of Financial Creditor. 8. RP has also informed that the applicant has also preferred an appeal before the Hon'ble NCLAT in Company Appeal (AT) (Insolvency) No. 55/2021, which is pending before the Hon'ble NCLAT. 9. Having considered the aforesaid facts and the order dated 28.02.2020, we are of the considered view that since the similar issue raised earlier by the applicant in CA/1511/2019 has already been decided by this Bench, hence, the present application is not maintainable. 10. Accordingly, the present application stands Dismissed. ============= Document 1 NATIONAL COMPANY LAW TRIBUNAL NEW DELHI BENCH In the matter of VMS Equipment Pvt. Ltd. (IB)-995(ND)/2018 CA No. 1511/2019 ......Financial Creditor v/s. M/s. Primose Infratech Pvt. Ltd. SECTION: 7 of IBC, 2016 ...Corporate Debtor Order delivered on 28.02.2020 SMT. INA MALHOTRA, HON'BL....

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....general terms of allotment under the Lease Deed, the Hon'ble Bench has adjudicated that the land given on lease to the Corporate Debtor for developing a Real Estate Project could not be considered as a Financial lease, leading to the conclusion that the land provider (Noida) was not a financial creditor. Reliance was placed on the decision of the Hon'ble NCLAT in the matter of Pr. Director General of Income Tax (Admn. & TPS) & Ors. Vs. Synergies Dooray Automobiles Ltd. & Ors. CA(AT) (Insolvency) 205/2017 wherein the Appellate Tribunal interpreted the Operational Creditors to be Creditors in respect of debt created for the operations of the Corporate Debtor. The relevant extract of the said order which was relied upon in the aforementioned case was observations as under: "Operational Debt in normal course means a debt arising during the operation of the company (Corporate Debtor). The goods and services including employment are required to keep the Company ("Corporate Debtor operational as a going concern. The Hon'ble Coordinate Bench further concluded that as per the guidelines of Indian Accounting Standards, the appellant (Noida) ....