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2022 (4) TMI 205
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.... 30.01.2020, restraining the Respondent from terminating the Sub-lease. 2. The facts as per the Application are as follows: The Respondent is Kakinada Seaports Limited, a Company incorporated under Companies Act. It is the lessor of all the land area measuring around 22 acres situated inside Kakinada Port. It has been subleased to the Corporate Debtor/Applicant vide two Sublease Agreements dated 06.03.2013 for 10 acres and 18.03.2014 for 12 acres. The Respondent also granted to the Corporate Debtor/Applicant, a User License Agreement dated 20.12.2011, giving exclusive right, license and authority to use all the facilities being pier and slip way for the purpose of business of Corporate Debtor/Applicant that is to serve as marine and offshore facility catering to merchant ships and offshore vessels of the east coast of India and to manage and perform all related activities. By concession agreement dated 19.03.1999 between the Government of Andhra Pradesh and International Seaports Pte Limited, Singapore which was subsequently assigned to the Respondent, the Respondent acquired from the Government of Andhra Pradesh, the concession to operate, maintain and manage three existing ....
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....essional (RP) urged the Respondent to submit its claim. The Resolution Professional (RP) issued a letter on 20.11.2019 informing that he is examining the validity of the termination of the Sub-lease Agreement and reserved his right to challenge the termination and denied any charge created in favour of the Respondent with regard to the payment of dues. It is informed that relevant claim Forms has to be filed. The Application also sets out the details pertaining to the Trust Deed dated 08.05.2012 and about the lease rentals for the subleases, which may not be relevant. The contention with regard to the amendment of the lease rentals is also made and the lease rentals for the infrastructure development services are contended to be exorbitant. The contention with regard to the charges for the area occupied by the Floating Dry Dock which is owned and managed by the Corporate Debtor and the Corporate Debtor incurring capital expenditure to extend the berth to the said dock is also not considered as relevant for this application. It is contended that without the subleased lands, liquidating the business and operations of the Corporate Debtor as a going concern would not be possible. It i....
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....auction the vessels and assets of the defaulter for the dues. The termination of the lease was also communicated to the Axis Bank. In pursuance of the termination notice dated 22.02.2019, the Respondent took possession of part of the lands. Hence, this Application is liable to be dismissed. 4. Heard both the Counsel and perused the written submissions. 5. From the contentions made by either side the points that fall for consideration are as follows: i. Whether I.A. No. 127/2021 is maintainable. ii. Whether the subleases under the Sublease Agreements dated 06.03.2013 and 18.03.2014 are not terminated and whether they are still in force. iii. Whether this Tribunal has jurisdiction to decide the issues pertaining to the subleases. iv. To what result. I. Whether I.A. No. 127/2021 is maintainable: The Counsel for the Respondent contends that this Application is not maintainable since, it is filed for the same reliefs under I.A. No. 17/2020. It is true that I.A. No. 17/2020 is filed for the same reliefs during the CIRP period and an interim order was obtained to maintain status-quo. Later, the Corporate Debtor was ordered for Liquidat....
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....blease Agreements dated 06.03.2013 and 18.03.2014 are not terminated and whether they are still in force: According to the Respondent the Sublease Agreements dated 06.03.2013 and 18.03.2014 are terminated by virtue of a termination notice dated 22.02.2019. The said termination notice calls upon the Applicant to clear the dues of Rs. 46.70 Crores along with interest and intimates that failing the said payment the subleases will be terminated on expiry of three months from the date of receipt of the notice. It is mentioned that the subleases will be deemed as automatically terminated on the expiry of three months from the date of receipt of the notice. A letter dated 08.11.2019 was issued to the Applicant by the Respondent the subject of which is "terminated subleases due to default in making the payments/request to clear outstanding amounts". The notice mentions that the subleases are deemed as terminated from 23.05.2019 i.e., expiry of three months from the date of receipt of their termination notice. It is further stated that as per law and Court Rules and decisions of the Supreme Court they, as the Court Authority, have the first lein/charge over all their equipment, goo....
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.... upon to explain about the nature of the Floating Dry Dock. Vessel as defined under Section 2(1) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 "include any ship, boat, sailing vessel or other description of vessel used or constructed for use in navigation by water, whether it is propelled or not, and includes a barge, lighter or other floating vessel, a hovercraft, an off-shore industry mobile unit, a vessel that has sunk or is stranded or abandoned and the remains of such a vessel". In the above judgment, the Floating Dry Docks used as floating workshops and Floating Dry Dock which is self-propelled and equipped with powerful engines were defined. Keeping aside the contentions pertaining to the nature of the vessel and whether the Floating Dry Dock is a vessel or not, it can be seen that the notice dated 08.11.2019 shows that the Port Authority has expressed that they have first lien/charge over the equipment etc. Whether the Respondent has considered the Floating Dry Dock as a vessel or not and whether the words further steps used in the notice dated 08.11.2019 would mean the sale of the vessel or the termination, can be better understood by looking ....
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.... of the Application. The Petitioner admittedly paid part of the rents during the pendency of this Application. The contention based on the said fact is that the acceptance of rents by the Respondents would amount to waiver as per Section 114 of Transfer of Property Act. The said provision is extracted hereunder for ready reference: "114. Relief against forfeiture for non-payment of rent,-Where a lease of immoveable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred". But the rent as stipulated in the agreement is admittedly not tendered, the rent towards the infrastructure is an issue in I.A. No. 21/2021 and the same is not paid yet. Even according....
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....on to the matter which is in the realm of public law cannot by any stretch of imagination be brought within the fold of the phrase "arising out of or "in relation to the Insolvency Resolution". Example of the Income Tax Appellate Tribunal passing an order against the Corporate Debtor at the time of initiation of CIRP is taken and held that if, Section 60(5)(c) of IBC is interpreted to include all questions of law or facts under the sky, the Interim Resolution Professional will then claim a right to challenge the order of Income Tax Appellate Tribunal before the NCLT. According to Section 18 IBC the Interim Resolution Professional shall take control and custody of any asset over which the Corporate Debtor has ownership rights as recorded in the balance sheet. But the explanation specifies the assets which cannot be included in the term "assets" which includes the assets owned by a 3rd party in possession of the Corporate Debtor held under trust or under contractual arrangements including bailment. It is on the basis of this Clause that the applicant seeks to keep the subleases live. But it can be seen that the said exemption would apply only if the asset is in possession of the Corp....