AI Drafter 
TaxTMI 
TaxTMI 
2023 (7) TMI 1027
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....18 passed by the National Company Law Tribunal, Kolkata Bench, Kolkata (hereinafter referred to as 'Adjudicating Authority'). For better appreciation it is appropriate to reproduce the impugned order:- "1. This Interlocutory Application being IA (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 ad measuring 2.209 acresin RS Dag No. 3203, 3205, 3206, and 3208 lying and situated at Narayanpur, Mouza and P.O. R-Gopalpur, P.S. Rajarhat, District-24- 3 Parganas (North), West Bengal out of which 1.90 acres is occ....
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....e to the applicant in taking possession of the said property so as to discharge his duties under the Code in furtherance of the CIRP of the Corporate Debtor; d. An order be passed directing and/restricting to remove any material or assets 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, undersection 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 claim....
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..../- (Rupees Fifty five thousand only). It further appears from the records that the said Agreement was preceded by another unstamped and unregistered Rent Agreement dated 27.07.2014 on identical terms, which expired on 26.07.2019. (d) The T-RMC claimed to 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 ....
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....is since Harshvardhan Tantia, one of the promoters of both the CD and T-RMC, was a director of T-RMC and held more than 2% shares in the CD at the time of the execution of the purported 2014 Agreement. In this regard, the RP has drawn our attention to 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 wi....
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....f India, (2019) 9 SCC 94 @ prs. 12, 19-20, 24, 32. (e) It is also pertinent to note that claim of tenancy to safeguard possession in the face of proceeding under SARFAESI Act, without any registered instrument creating such tenancy, is considered 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 ReconstructionCo. 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 SCCOnLine 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 o....
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....is erroneous in nature and should not be relied upon, owing to its inconclusiveness, and (iii) the application is not maintainable as the said 26.07.2019 agreement is not a standalone agreement, merely a renewal of the old Agreement from July 2014. 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 w....
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....icant, we do not find any substance in the application. 17. The Resolution Plan has already been approved by the CoC and the application for approval has also been heard by this Adjudicating Authority for its approval. 18. By way of separate orders, the said Resolution Plan has been approved by this Adjudicating Authority. Therefore, I.A. (IB)429/KB/2022 even otherwise has become infructuous and is dismissed as such. 19. Certified copy of this Order be issued on demand to the concerned parties, upon due compliance." 2. The appellant has pleaded that it was a tenant over an area of 1.90 acres of land on the strength of lease agreement for five years @ monthly rental of Rs. 55000/-. The appellant has claimed that it was engaged in business of manufacturing and supply of ready mix concrete and employ more than 75 workers in the plant. Initially on 27.7.2014 the appellant entered into a rental lease agreement with Corporate Debtor. The appellant continued as tenant and even before expiry of five years of the lease agreement, subsequent lease agreement was executed on 26.07.2019 for further period of five years. However, subsequently on the basis of applica....
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....t the agreement dated 26.07.2019 untenable and to reverse the transaction and direct the appellant to vacate 1.90 acres of land and the land be vested in the Corporate Debtor. Finally the impugned order was passed which has been assailed in the present appeal. Alongwith the present appeal the appellant has also brought on record copy of lease rent agreement dated 27.7.2014 as well as lease rent agreement dated 26.07.2019 vide Annexure A-2 and A-3 respectively. 3. Mr. Abhijeet Sinha, learned counsel for the appellant at the very outset has argued that the impugned order passed by learned Adjudicating Authority on a petition relating to under valued transaction and another on eviction matter are not enable in the eye of law. He submits that so far as under valued transaction is concerned there is nothing on record to suggest as to how the rent was treated as under valued. He by way of referring to Transaction Audit Report which starts from Page 450 Volume 2 of Memorandum of Appeal, submits that without any cogent reason the auditor has disclosed as if in the premises in question applicable monthly rental was Rs.4,85,000/-. No reason has been assigned for coming to the conclusion o....
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....icant has also supported the impugned order and he has questioned the veracity of the lease agreement. By way of referring to last but one para at Page 474 Volume 2 i.e. Part of the Transaction Audit Report he submits that the said land was mortgaged with the Bank. The Corporate Debtor without seeking permission or intimation to the Bank has entered into lease agreement with the appellant. 6. He has also taken us to both the rent agreements and submits that first lease agreement was entered into after the account of the Corporate Debtor was declared as NPA. Even though application under Section 7 of the IBC was pending against the Corporate Debtor, second lease agreement was executed in between the appellant and Corporate Debtor on 26.07.2019 for further period of five years. Both the lease agreement though were for five years were only notarised not registered. He further questioned that it is peculiar thing that in the month of July, 2014 when first lease agreement was entered the monthly rent was fixed as Rs.55000/- and that rent continued for five years even before completion of five years. On 26.07.2019, second lease agreement was entered for further five years, however, mo....