TaxTMI 
TaxTMI 
2022 (7) TMI 99
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....IB) No. 107/KB/2021 has been filed by Mr. Niraj Agrawal, Resolution Professional/Applicant under section 45 read with section 49 of the Insolvency and Bankruptcy Code, 2016 along with Rule 11 of the National Company Law Tribunal Rules, 2016 for the following reliefs:- a. That this Adjudicating Authority be pleased to allow the present application; b. An order be passed declaring the so called agreement dated 26.07.2019 between the Corporate Debtor and T-RMC Private Limited as void and reverse the effect of such transaction in accordance with the provisions of the Code; c. An order be passed directing Respondent No. 1 (T- RMC Private Limited) to immediately vacate the said land (parcel of land admeasuring 2.209 acres in RS Dag No. 3203, 3205, 3206, and 3208 lying and situated at Narayanpur, Mouza and P.O. R-Gopalpur, P.S. Rajarhat, District-24- Parganas (North), West Bengal out of which 1.90 acres is occupied by Respondent No.1) transferred as part of the transaction and the same be vested in the Corporate Debtor; d. An order directing the respondents not to obstruct the sole and exclusive physical possession of the said land by the RP, the Applic....
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....ets which is kept at the said property of the Corporate Debtor; 3. Both these applications are being disposed of by way of this common order. 4. The underlying company petition in CP (IB) No.438/KB/2018 was filed by Vijaya Bank against Castal Extrusion Private Limited, the Corporate Debtor, under section 7 of the Insolvency and Bankruptcy Code 2016 ("the Code" or "IBC") which was admitted vide order dated 18.03.2020 in CP (IB) No. 438/KB/2018. 5. Initially, the Applicant/RP (Reg. No. IBBI/IPA-001/IP-P00130/2017-18/10272) was appointed as the Interim Resolution Professional. He was later confirmed as the Resolution Professional of the Corporate Debtor at the first meeting of the Committee of Creditors (CoC) on 18.08.2020, adjourned and concluded on 19.08.2020. 6. The IRP made public announcements on 20.03.2020 in Business Standard (English) and Ekdin (Bengali) newspapers regarding initiation of CIRP and called for proof of claims from the financial and operational creditors, workers and employees of the Company in the specified forms till 01.04.2020. 7. The RP has filed these two interlocutory applications being I.A. (IB) 107//KB/2021 and I.A. (IB) 1302//KB/2020 IN C.....
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....o be in possession of the said area of the subject premises since 27.07.2014. It is pertinent to note that both the above agreements were envisaged to be determinable prior to expiry of the terms thereof. (e) It is evident from the claim filed by Vijaya Bank in Form C that the principal borrower TCL's account with Vijaya Bank was declared as "Non Performing Asset" ("NPA") in the first quarter of 2014, and subsequently, a notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter "SARFAESI Act") was issued by the bank on 10.03.2014 for enforcement of the security interest held over the subject land. (f) The purported tenancy was created in favour of T-RMC on 27.07.2014, i.e. after receipt of notice under Section 13 (2) of SARFAESI Act, and 4 days prior to receipt of notice dated 01.08.2014 under Section 13 (4) of SARFAESI Act, and as such, in patent derogation & contravention of the bar under Section 13(13) of the SARFAESI Act. No NOC was sought from the FC prior to creation of the lease over the subject land, and the said purported Rent Agreements falsely mentioned that the sa....
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....o the following relating to Shareholding pattern: Shareholding of T-RMC in FY 2014-15 at page 43 of the Application states that Harshvardhan Tantia held 50% shares of and in T-RMC at the relevant date. Shareholding of CD in FY 2014-15 at page 107, Application: Harshvardhan Tantia personally held 6.22% shares of and in the CD at the relevant date at the time of execution of the 2014 Agreement. Details of appointment and resignation of Harshvardhan Tantia from T-RMC (Form No. DIR-11) at pages 105-106: Harshvardhan Tantia was the director of T-RMC since 17.07.2014 to 14.03.2016. (l) The said tenancy arrangement was subsisting, and being acted upon, as on 18.03.2018, i.e. two years preceding the date of insolvency commencement. (m) Accordingly, the arrangement pursuant to the 2014 Agreement was continuing within 2 years preceding the Insolvency Commencement Date, 18.03.2020, and as such, falls within the purview of Sections 46 (1) (ii) of IBC. (n) The valuation report submitted by the RP shows that the fair monthly rent should have been Rs.4.85 lakh instead of Rs.55,000/- and as such there was a shortfall of Rs.4.30 lakh per month. ....
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....dered impermissible and such purported tenant without any registered instrument creating tenancy is considered to be a "tenant at sufferance" akin to a trespasser who has no right to possession of the property. (Bajrang Shyamsunder Agarwal v. Central Bank of India (supra.), @ pr. 20 [quoting Harshad Govardhan Sondagar v. International Asset Reconstruction Co. Ltd., (2014) 6 SCC 1 @ pr. 36.]; confirmed in Hemraj Ratnakar Salian v. HDFC Bank Ltd. And Ors., 2021 SCC OnLine SC 611 @ prs. 12-13). (f) The look back period stipulated under Section 46(2) of IBC does not apply for impugning a transaction under Section 49 of IBC as held by the Hon'ble Apex Court in Aditya Kumar Tibrewal v. Om Prakash Pandey, 2022 SCC OnLine NCLAT 142 @ pr. 12 (iv)-(vii), p. 12-14. (g) The purported undervalued lease created in favour of T-RMC constitutes a transaction for "transfer of one or more assets of the corporate debtor attracts the provision of Section 45 (2) of IBC. (h) The impugned lease arrangement was created at a gross undervalue considering the value of the land and the expected rate of return. (i) The fair value of annual rent, arrived at on the basis of rat....
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.... 11. Upon perusing the documents filed by the RP, judgments referred and considering submissions by the parties, it is ordered that the T-RMC Private Limited and other entities, if there be any, is directed to remove its establishment along with all its employees, staffs, officers, workmen engaged by them including all its machineries from the subject land/ premises of CEPL within 30 days from the date of approval of the Resolution Plan and handover vacant peaceful possession of the land/premises to the Resolution Applicant. 12. It is further directed that the Resolution Applicant shall not be in any manner liable to take any responsibility and/or liability in respect of the said T-RMC including its suppliers / contractors / vendors / employees / workers / staffs or any other entities whatsoever. 13. It is further directed that in the event the said T-RMC fails and/or neglects to remove its entire set-up along with all officers, employees, staffs and workmen engaged by them including all its machineries from the subject land/premises of CEPL as stated above within the stipulated period, the concerned District Administration, Police Authorities, Local Authorities and all ot....