TaxTMI 
TaxTMI 
2021 (12) TMI 7
X X X X Extracts X X X X
X X X X Extracts X X X X
....estion 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 repeated reminders, the respondent did not respond to any letters/email of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 production activity so allotment is cancelled, accordingly action is taken as per RIICO disposal of Land required Rules, 1979. As per allotment terms no. 1 & ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h 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 industrial plots at a subsidized rates to the applicants for establishing industries in the Industrial area. ii. The allottee of the Industrial plot is a lessee and RIICO is the lessor wherein the ownership of the plot remains with the RIICO.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....IICO 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 Rajasthan Public Premises. xiii. Upon cancellation of allotment and termination of the lease deed, all right title and interest of the CD over the industrial plot came to an end. Further the legal possession of the plot also reverted to RIICO and CD continued to be an unauthorized occupant, upon termination there....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 lease has been cancelled. Reply to IA-1492/2021 5. In response to above stated applications, the respondent filed a reply which are as follows- i. Respondent- 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 Rajasthan Public Premises. xiii. Upon cancellation of allotment and termination of the lease deed, all right title and interest of the CD over the industrial plot came to an end. Further the legal pos....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hich 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 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 lease has been cancelled. Reply to IA 2569/2021 6. In response to above stated applications, the respondent (Liquidator) filed a reply which is as follows- i. Liquidator came to know vide show cause notice dated 8.10.2020 and full details on 3.3.2021 when eviction order was received by the liquidator. ii. The version given by RIICO that the plot was cancelled in 7.8.2003 is wrong and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s 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 in itself is not complete. 7. We have heard the Ld. Counsels for applicants of both the applications and gone through the averments made in the applications, reply and the written submissions filed by the parties. 8. On perusal of the pleadings of the parties, as per Rule 24(1) of RIICO disposal of Land Rules, 1979, the allotment of plot can be cancelled only by the unit head of RIICO which was not done and therefore cancellation is not good in the eyes of law. 9. RIICO repeatedly sent notices to pay the dues and get the restoration done on 06.10.2017. 10. According to lease agreement RIICO was supposed to sent notice to IDBI and if ....