TaxTMI 
TaxTMI 
2021 (12) TMI 7
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....tcy Code, 2016. 2. Since there is a common question of law involved concerning termination of lease deed and various other common questions in all the above-mentioned applications, With the knowledge of the parties common hearing was given to dispose of both the IAs by this common order. IA-1492/2021 3. The facts mentioned in the application IA-492/2021 in brief are as follows- i. The liquidator completed all the process in time as per the IB Code and Rules and Regulations. The liquidator has filed all progress reports to the Tribunal with quarterly reports. ii. The liquidator conducted E-auction for sale of land and building and plant and machinery was sold at a value which was much more than the liquidation value, but there was no bidding for land and building. iii. The liquidator informed respondents several times by mail and by speed post that the CIRP and subsequently liquidation was initiated against corporate debtor. It was also suggested that the respondent should file its claim, if any with the applicant. The applicant further sought details regarding any dispute/cases against the said property of Corporate Debtor. Even after receiving r....
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.... is purchasing the land and building on more value than the failed bid. The buyer has also made initial payment of Rs. 70 lac to the account of the corporate debtor as per terms of sale prepared by the liquidator in consultation with the stakeholders. xi. The respondent did not communicate with the liquidator despite several mails and letters sent by the speed post, followed with phone calls. Suddenly on 4.3.2021, the applicant/liquidator received the order dated 3.3.2021 passed by the Sampada Adhikari Court (EO Court) RIICO Ltd., Alwar, Rajasthan, Respondent number 2 on mail by the respondent 1 stating that- a. That the lease deed was executed on 23.02.1995 b. On 7.12.2002, the CD/allottee was served with notice of show cause for violation of terms of lease deed and allotment letter. c. As per clause 2(d) of the lease deed, the allottee was required to complete the shed within 12 months of the date of possession and should have started production in 36 months from the date of possession which was not done. Hence allotment was cancelled on 7.8.2021. d. That the CD has violated allotment letter and lease deed terms and did not start the p....
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....ac being 5.60% stake. The equity shareholders come in the last priority list as per section 53 of the IB Code. xvii. The respondent has deliberately violated the provisions of sec. 32A (2) read with explanation (i) & (ii) of the IB Code whereas CD is in liquidation. xviii. Despite several communications by the liquidator, the respondent did not file any claim to the liquidator/application to tribunal. xix. Respondent has violated the various provisions of IB code. xx. It is submitted that the land, building and other assets are mortgaged to the Financial Creditor with the written consent of the respondent and all original title deeds and documents are in possession of the Financial Creditor and the Financial Creditor being the secured lender has first charge over the property. IA-2569/2021 4. That the facts mentioned in the application IA-2569/2021 are as follows- i. Applicant- RIICO is a state government owned corporation engaged in promotion of industrial activity by developing industrial areas in State of Rajasthan. RIICO has developed various industrial area, Alwar. In the developed industrial areas RIICO grants lease of indust....
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....nexure R/4. x. As the Corporate Debtor was not complying with the terms of lease, allotment and rules, RIICO sent a notice to IDBI Bank as well, intimating them about the default of CD as well as unauthorised construction done by the debtor. IDBI upon receipt of the said communication from RIICO sent a notice to CD asking it to clear dues and remove unauthorised construction. xi. Having exhausted all possibilities and after giving repeated opportunities to the CD to comply with the terms, when the CD failed to make payment and act in accordance with allotment letter, lease deed and rules, RIICO issued a show cause notice seeking payment of due amount failing which lease deed would be cancelled. xii. Due to violation of various terms of the lease deed, allotment and rules and after giving sufficient opportunity to the CD, RIICO on 7.8.2003 cancelled the allotment of the plot and terminated the lease deed executed with the CD. The CD was also asked to handover the possession of the property to RIICO within 7 days failing which it shall be deemed that the possession has been taken over by RIICO and action would be initiated to vacate the premises under the R....
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.... as liquidator has no legal right to conduct the auction and the same is contrary to provisions of law. xix. It is submitted that all rights of the CD over the allotted plot came to an end on 7.8.2003 when the allotment of the plot was cancelled and the lease was terminated. The CD as on date has no title over the industrial plot ownership of which lies with RIICO. xx. It is a settled law that something which has been expressly excluded cannot be included. This common law principle of Expressio Unius Est Exclusio Alterius is squarely applicable. Since the property owned by third party has been expressly excluded in the code itself, the liquidator cannot be permitted to impliedly include the same and sell it off a liquidation estate. xxi. The application the liquidator not brought on record any document to establish that the CD is presently the owner of the property. xxii. Liquidator stated that he has identified private buyers interested in purchasing the land and has taken Rs. 70 Lakhs as per payment, without there being any consent of the tribunal. It is submitted that in all probability the liquidator has not even intimated these buyers that l....
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....d and RIICO Land Disposal Rules, 1979. As no payment was made by CD, RIICO sent notices dated 3.11.99, 1.6.2000, 30.5.2001, 15.10.2001, 13.2.2002 and 21.5.2002 seeking payment of the due amount failing which the allotment of the plot shall be cancelled and lease would be terminated. x. As the Corporate Debtor was not complying with the terms of lease, allotment and rules, RIICO sent a notice to IDBI Bank as well, intimating them about the default of CD as well as unauthorised construction done by the debtor. IDBI upon receipt of the said communication from RIICO sent a notice to CD asking it to clear dues and remove unauthorised construction. xi. Having exhausted all possibilities and after giving repeated opportunities to the CD to comply with the terms, when the CD failed to make payment and act in accordance with allotment letter, lease deed and rules, RIICO issued a show cause notice seeking payment of due amount failing which lease deed would be cancelled. xii. Due to violation of various terms of the lease deed, allotment and rules and after giving sufficient opportunity to the CD, RIICO on 7.8.2003 cancelled the allotment of the plot and terminated....
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.... 7.8.2003 and that application filed by RIICO for taking possession has been allowed by the estate officer. RIICO requested liquidator to stop the process of e-auction as liquidator has no legal right to conduct the auction and the same is contrary to provisions of law. xix. It is submitted that all rights of the CD over the allotted plot came to an end on 7.8.2003 when the allotment of the plot was cancelled and the lease was terminated. The CD as on date has no title over the industrial plot ownership of which lies with RIICO. xx. It is a settled law that something which has been expressly excluded cannot be included. This common law principle of Expressio Unius Est Exclusio Alterius is squarely applicable. Since the property owned by third party has been expressly excluded in the code itself, the liquidator cannot be permitted to impliedly include the same and sell it off a liquidation estate. xxi. The liquidator not brought on record any document to establish that the CD is presently the owner of the property. xxii. Liquidator stated that he has identified private buyers interested in purchasing the land and has taken Rs. 70 Lakhs as per paym....
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....mitted copy of the allotment file from the unit head Alwar on 23.06.2021 and it is clear that before passing order, no approval is taken for time extension involved for payments/utilization of plot by the competent authority. ix. Facts were made available to the liquidator after filing of application which shows that the cancellation order is void ab initio and even if it is considered valid then also, it is illegal. x. The said plot was not re-allotted to any third party for the last 18 years which would have resulted in revenue loss to the RIICO. xi. RIICO did not initiate any action for almost 18 years to take the possession of the said plot. As per section 27 of Limitation Act, 1963 if no action is taken for recovery of possession during the period of limitation i.e., for 12 years as provided under Article 65 in Schedule I of Limitation Act, 1963, then the rights get extinguished. Therefore, RIICO does not have any right on the said plot and only the CD has the rights to the said plot based on adverse possession. xii. There has been no refund of any amount till date to the CD upon cancellation of allotment which implies that the cancellation ....