TaxTMI 
TaxTMI 
TaxTMI 
2023 (4) TMI 1304
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.... 31.08.2021 passed by the Learned Adjudicating Authority, National Company Law Tribunal, Guwahati Bench, Guwahati in IA No.47/2020 in IA No.73/2018 of 2020 in CP(IB) No.02/GB/2018. By the said order the Adjudicating Authority was pleased to allow the application filed by Kitply Industries Ltd, Corporate Debtor, which was filed under Section 60(5) read with Section 74(3) of IBC, 2016 and read with Rule 11 of the National Company Law Tribunal Rules, 2016. By the impugned order, in sum and substance, the appellant herein i.e. Sicom Ltd was directed to transfer Igatpuri Unit to the nominee of the Resolution Applicant M/s Kitply Industries Ltd within 45 (forty five) days. We think it appropriate to reproduce the relevant order passed by the Adjudicating Authority as follows:- 9. Heard the learned Counsels appearing for both the sides at length, perused the documents, submissions made available. We are of the considered view that the Respondent No.1 has erred in not transferring the Igatpuri Unit to the Applicant / CD which are evident from the following: 9.1 The Respondent No.1 had sanctioned a loan of Rs.1.95 Crores to one Company named M/S Crystal Laminates Ltd, and the said Comp....
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....ding under the DPF for purchase of the Igatpuri Unit. The Respondent No.1 accepted the OTS proposal of the CD vide letter dated 20.02.2008 wherein it had agreed to accept an amount of Rs.231.00 Lakhs from the CD towards full and final settlement of all outstanding dues. In terms of the OTS, the CD was required to pay Rs.200.00 Lakhs in cash and Rs.31.00 Lakhs by way of Allotment of Non-Convertible Debentures by 29.02.2008. The deadline for payment was extended to 19.03.2008 vide letter dated 04.03.2008 by the Respondent No.1. The CD in compliance of the said OTS dated 20.02.2008 paid an amount of Rs.200.00 Lakhs vide Pay Order No.529886 dated 17.03.2008 and also issued and forwarded the Non-Convertible Debentures of Rs.31.00 Lakhs in favour of the Respondent No.1 on 18.03.2008. Thus the CD fully complied and honoured the OTS well in time as stipulated by the Respondent No.1. The Respondent No.1 as stated in clause No.2 (vi) of the OTS dated 20.02.2008 had unequivocally and unconditionally agreed to convey/transfer the Igatpuri Unit to the CD on receipt of the aforesaid amount. 9.6 This transaction of transfer of the Igatpuri Unit was complete and the Respondent 1 was required to....
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....lso in not transferring the Unit to the CD. 10. The Respondent had lodged total claim of Rs.40,86,47,641.00 which included the amount of ICD of Rs. 8.90 Crores, OTS & interest and the same has been rejected /declined by the IRP/RP and the only provision of settlement towards the Non-Convertible Debentures of Rs.31.00 Lakhs issued by the CD Kitply Industries Ltd was made in the Resolution plan approved. The Respondent accepted the amount of provision made in the Resolution Plan and accounted for which shows that the Respondent had accepted the rejection of its claim filed by the IRP/RP which is also further clear from the fact that the Respondent had not filed any appeal against the rejection of the amount claimed or approval of Resolution Plan submitted. 10.1 The issue of claim not admitted during CIRP / not filed during the CIRP / before the approval of the approval of the Resolution Plan, is well settled. 10.2 The Hon'ble Supreme Court in the case of 'Committee of Creditors of Essar Steel India Limited vs. Satish Kumar Gupta and others' (2020) 8 SCC 531 (famously known as Essar Judgment) settled the position of law and held in para 105 & 107 as under: "105....
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....inding on the Corporate Debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan...." 10.4 In view of the above decision of the Hon'ble Supreme Court, the demand of OTS amount/claim amount of Rs.40,86,47,641.00 (Rupees Forty Crores Eighty-Six Lakhs Forty-Seven Thousand Six Hundred and Forty-One Only) [(-) Rs.31.00 lacs] by the Respondent for transfer of the Igatpuri Unit to the RA/CD is irrelevant and illogical after the approval and implementation of the Resolution Plan on 07/12/2018. The Respondents' approach of not transferring the Unit to the CD and even after the approval of the Resolution Plan is bad and not appreciated. They have erred here also. 11. Proceedings before Ld. BIFR & Hon'ble AAIFR Based on its Audited Balance Sheet (ABS) as on 31.03.2012 the Applicant/ C....
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....sdiction to entertain any suit or proceedings in respect of any matter on which National Company Law Tribunal or the National Company Law Appellate Tribunal has jurisdiction under this Code. Civil court not to have jurisdiction. Section 231-Bar Jurisdiction 231. No civil court shall have jurisdiction in respect of any matter in which the [Adjudicating Authority or the Board] is empowered by, or under, this Code to pass any order and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any order passed by such [Adjudicating Authority or the Board] under this Code Section 238: Provisions of this Code to override other laws 238. The provisions of this Code shall have effect, notwithstanding anything Inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. Section 430 of the Companies Act 2013 reads as under: 430 Civil court not to have jurisdiction.- No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine....
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....s and requests for transferring the Igatpuri Unit of the Corporate Debtor in the name of the Resolution Applicant or its nominee, the Respondents have failed to transfer the same in complete disregard of the provisions of the Resolution Plan approved by this Hon'ble Adjudicating Authority. 14. Hence, the issues raised by the Respondents and the Applicant have been heard and considering the arguments advanced by the learned Lawyers of both the sides and perusal of the documents, written submissions and the settled position of law, the Respondent SICOM is hereby directed to transfer the Igatpuri Unit to the nominee of the Resolution Applicant M/s. Kitply Industries Ltd. within 45 (forty-five) days from today. 14.1 The entire expenses towards the stamp duty etc., if any, for transferring the Unit in the name of the CD shall be borne by the Applicant / CD only. 14.2 The Respondents No.3 to 13, which include Directors, ex- Directors shall be relieved automatically from this case only on transfer of the Igatpuri Unit to the CD-Kitply Industries Ltd. and filing of the compliance report to such transfer with the Registry by the Respondent Company within 15 (fifteen) days from ....
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....dent No.1 approached the appellant for settlement and wrote two separate letters to appellant for one time settlement, one on behalf of M/s PK Commercial and another on behalf of the Respondent No.1 herein. In response to the request of Mr. P.K. Goenka the Managing Director of Respondent No.1 on 19.02.2008, the appellant No.1 issued letter to M/s P.K. Commercial Co (also promoted by Mr. P.K. Goenka, Managing Director of Respondent No.1) whereby appellant agreed to accept the payment of Rs.8.52 crores towards costs and other charges subject to various terms and conditions. In terms of Clause (i) it was agreed that Rs.852 lakhs has to paid on or before 27.02.2009 and out of amount of Rs.852 lakhs, Rs.31 lakhs was to be paid by way of repurchase of Non-convertible debentures (NCD) proposed to be issued by Respondent No.1. In the said communication it was stated that any settlement scheme entered shall become effective only on receipt of payment of Rs.300 lakhs and post dated cheques for the balance amount of Rs.552 lakhs on or before 29.02.2008. By another proposal dated 25.01.2008 the Managing Director of Respondent No.1 proposed for one time settlement of Rs.231 lakhs. The appellant....
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.... the appellant No.1 issued a communication to Respondent No.1 informing that the Respondent No.1 had failed to make payments in terms of OTS and Respondent No.1 was asked to pay Rs.2,95,95518/- with further interest thereon @ 14% per annum from 01.12.2008 to 18.12.2008 failing which OTS shall stand cancelled and appellant No.1 may enforce his right in terms with Clause 5 of the Agreement for Sale and proceed with re-possession of the property. Thereafter reminders were issued to hand over peaceful possession of the property mentioned in the Agreement for Sale dated 03.09.1998. Finally on 25.03.2009 the appellant No.1 withdrew the OTS and enforced their right in terms of Clause 5 of the Agreement dated 03.09.2008 by cancelling the agreement and terminating the said agreement with immediate effect. By the said communication dated 25.03.2009 it was intimated that in view of cancellation of OTS the amounts which was paid till then were forfeited towards the dues. It is further case of the Appellant that the communicated dated 25.03.2009 to which agreement for sale dated 03.09.1998 was cancelled was never assailed by Respondent No.1 and as such the cancellation of sale to agreement date....
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.... (CIRP) filed by one of the financial creditor of Respondent No.1 and declared moratorium. CIRP was initiated by IDBI, one of the financial creditors on 01.05.2018, as per order of NCLT against Respondent No.1 and one Mr. Bijoy Murmuria was appointed as Interim Resolution Professional. In the CIRP pursuant to the publication of Form A under Regulation 6, the appellant No.1 filed a claim as financial creditor to Kitply Industries Ltd. This claim was filed on 18.07.2018. It is the stand of the appellant that on the same date another email was sent by the appellant to the Corporate Debtor indicating therein that Corporate Debtor does not have ownership over the land bearing Gat No.260/B/261 situated at Igatpuri, District Nashik together with building and structures thereon and plan and machinery and other instalments/equipment. It was clarified that CD/Respondent No.1 had approached for purchase of the property but failed to pay the purchase/sale consideration and as such a request was made to hand over back the property to Appellant No.1. On 17.08.2018 the RP sent an email dated 27.08.2018 to the appellant No.1 to re-submit the claim form and thereafter on the same date i.e. 27.08.20....
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.... Rungagora Road, Tinsukia Assam (commonly referred to as Tinsukia Property) (2) Makum Pathargaon, Mouza Makum, P.S. - Margherita, Dibrugarh, Assam (Commonly referred to as Margherita Property), (3) Plot No. C-3, Gondia Industrial Area, Dist. Bhandara, Maharashtra (commonly referred to as Art Gondia Property), (4) Margherita Town, MouzaMakum, Dist Tinsukia, Assam (commonly referred to as Art Margherita Property), (5) situated at Village Long Islands, Rangat Tehsil, Middle Andaman, (commonly referred to as Andaman Property). Including any fixture and /or addition to Plant and Machinery constructed/erected/Installed or to be installed thereon.- As per Annexure D-Form 8 & 13 @Schedule of Properties DETAILS OF THE BANK ACCOUNT TO WHICH THE AMOUNT OF THE CLAIM OR ANY PART THEREOF CAN BE TRANSFERRED PURSUANT TO A RESOLUTION PLAN: Bank details of SICOM Ltd are under: Name of the Bank HDFC BANK LTD Branch address of the Bank 101-104, Tulsiani Chambers, Free Press Journal Marg, Nariman Point, Mumbai 4000021 Beneficiary Account Number 00010350003084 Name of the Beneficiary SICOM LIMITED IFSC Code of the Bank HDFC0000001 Account Type Current 10 LIST OF DOCUMENTS ATTACH....
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....ught on record and is at running Volume II Page 265 to 267. It is appropriate to reproduce the same as follows: "Approval of resolution plan in respect of Kitply Industries Ltd. under the Insolvency & Bankruptcy Code, 2016 Shikha Sarawgi to. sware 02/06/2019 04:25 PM Cc rbhosale, gkhutal Hide Details From: "Shikha Sarawgi" To Ce , Please respond to History: This message has been forwarded. 3 Attachments : 맛 SICOM Letter pdf SICOM payment detail.pdf Sicom.pdf Dear Sir/Madam, With respect to the Order passed by the Hon'ble National Company Law Tribunal, Guwahati Bench, dated 07th December, 2018, please find enclosed the relevant extracts of the Resolution Plan in respect to SICOM Limited/SICOM ARC Limited: "Clause 3.8: Proposal for Other Liabilities Rs. 0.31 Cr held by SICOM/SICOM ARC Ltd. (As provided in the IM) * Resolution Applicant proposed to settle the liability by was of a payment of following amounts as a one-time settlement of the loan. * Rs. 0.0031 Cr (Indian Rupees Thirty One Thousand) to SICOM/ SICOM ARC Ltd. * The said debenture holders shall not invoke, exercise or enforce any security interest and....
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....s per the said plan so approved an amount of Rs. 31, 000 (Rupees Thirty One Thousand) has re be paid to you towards full and final settlement of the claim, which is being already paid as per the details attached Post receiving the above amount all the dues of the Company remains settled and extinguished. Further, in view of the aforesaid, kindly let us know a convenient date and the contact details of the relevant officials, for the execution of the requisite documentations for the transfer of the immovable property located at Igatpuri, as per the approved Plan. Kindly ensure that the requisite documentations and transfer of the property is completed within a time span of 10 days from the receipt of this letter, for appropriate and timely implementation of the sail Plan as approved by the Hon'ble Adjudicating Authority, National Company Law Tribunal The relevant extracts of the Resolution Plan are also enclosed with this letter for your reference. A hard copy of this letter dated 06.02-2019 has also been sent to you at your registered address, as enclosed Thanks & Regards Shikha Sarawgi Company Secretary." 7. It has been pleaded that the appellant despite hi....
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....e agreement the appellant approached the Respondent/corporate debtor to deliver the possession but all efforts went in vain. However, in the meanwhile certain proceedings were initiated under the SICA which were pending for several years. After the initiation of CIRP in the present case and publication, the appellant as financial creditor filed its claim in Form C showing his outstanding debt to the tune of Rs.14,86,47,641/-. The principal amount was Rs.8,90,00,000/-. He submits that since the property of Igatpuri was never conveyed by executing sale deed to the Respondent/corporate debtor, the appellant preferred not to mention anything in respect of Igatpuri property in Form 'C' submitted before the IRP. 10. Mr Savla, learned senior counsel by way of referring to Section 18(1)(f) and also Explanation (a) has argued that RP was not having any authority to include the Igatpuri property in the resolution plan. He further submits that though despite vigorous request made by the appellant he could not lay his hand on the entire resolution plan, he was only communicated certain few paragraphs of the resolution plan showing as if claim of the appellant alongwith other two financial cre....
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....ch Corporate Debtor was not having any title over the property in question and also in a situation where due to non-fulfilment of the conditions imposed in the agreement to sell the said agreement was already cancelled and terminated much before initiation of the CIRP in the present. Learned NCLT has committed serious error in directing the appellant to convey and execute the sale deed in favour of Corporate Debtor. According to learned senior counsel the impugned order is contrary to the settled proposition of law and it was beyond the jurisdiction of the NCLT. The impugned order according to learned senior counsel for the appellant is liable to be set aside. 12. Mr. Ramji Srinivasan, learned senior counsel appearing on behalf of the only contesting respondent i.e. Respondent No.1/corporate debtor namely Kitply Industries Ltd at the very outset submitted that in respect of the Corporate Debtor, CIRP was initiated by its admission on 1.5.2018. On 22.7.2018 the Resolution Profession had rejected the claim of the appellant in respect of payment of rent amount consisting the Igatpuri property. On 22.10.2018 Committee of Creditors approved the resolution plan which subsequently on 7.1....
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....oney and subsequently paid a sum of Rs.56,25,000.00 (Rupees Fifty six lakhs twenty five thousand only). The Corporate Debtor on payment of the aforesaid consideration was put in possession of the Igatpuri Unit by the Appellant in 1998 accordingly. b) The remaining consideration of Rs.1,58,75,000.00 (One Crore fifty eight lakhs seventy five thousand only) was to be paid in 31 monthly instalments under the "Deferred Payment Facility) (DPF) till 15.08.2021. True copy of the Agreement to Sell dated 03.09.1998 is annexed herewith and marked as Annexure R-5." 13. The learned counsel for the Respondent tried to convey that the entire consideration amount in respect of Igatpuri property was already paid to the appellant in terms of agreement to sale dated 3.9.1998. According to him once entire payment was made, directing the appellant save and except to convey/transfer the land to the Corporate Debtor there was no option left for the NCLT. He submits that in such situation the learned NCLT has rightly directed for transferring the property of Igatpuri Unit. Mr. Ramji Srinivasan, learned senior counsel has also referred to two communications i.e. mail dated 19.02.2008 and 20.02.20078 w....
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....f the judgement of the Hon'ble Supreme Court reported in (2018) 11 SCC 508 Nabha Power Limited (NPL) Vs Punjab State Power Corporation Limited (PSPCL) and another. Para 56 of the said judgement is reproduced hereinbelow:- "56. In 'Principles of Statutory Interpretation' by Justice G.P. Singh (former Chief Justice, Madhya Pradesh High Court), it has been expressed as under: "(e) Reddendo Singula Singulis The rule may be stated from an Irish case in the following words Where there are general words of description, following an enumeration of particular things such general words are to be construed distributively, reddendo singula singulis; and if the general words will apply to some things and not to others, the general words are to be applied to those things to which they will, and not to those to which they will not apply; that rule is beyond all controversy16". Thus, 'I devise and 'bequeath' all my real and personal property to A' will be construed, reddendo singula singulis by applying 'devise' to 'real' property and 'bequeath' to 'personal' property17 and in the sentence: 'If any one shall draw or load ant sword or gun&....
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.... to agreement to sale which was entered in between the appellant and Corporate Debtor long back in the year 1998. In terms of the agreement after payment of certain amount within a specified time, possession of land property of Igatpuri Unit was to be handed over to the Corporate Debtor i.e. Kitply Inds Ltd. It was clarified in the agreement as to how rest of amount was to be paid; in which manner and within what time. Time was also prescribed in the agreement to sale. Since in the present appeal citus of the dispute revolves around the agreement dated 3rd September, 1998 it would be appropriate to reproduce relevant portion of agreement as follows:- "ARTICLES OF AGREEMENT made at Mumbai this 3 day of September One Thousand Nine Hundred Ninety Eight BETWEEN SICOM LIMITED, formerly known as THE STATE INDUSTRIAL AND INVESTMENT CORPORATION OF MAHARASHTRA LIMITED, a Company Incorporated and registered under the Companies Act, 1956 and having its Registered Office at Nirmal, 1" Floor, Nraiman Point, Mumbai 400 021, hereinafter called "the Vendor" (which expression shall unless it be repugnant to the context or meaning thereof be deemed to mean and include its successor or successors a....
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....osts, charges and expenses and all other moneys payable by his Mortgagor Company to the Vendor under the said First Mortgage, the Mortgagor Company interalia (a) granted, conveyed, assigned, transferred and assured unto the Vendor ALL THOSE piece or parcel of Non-Agricultural (N.A.) land, bearing (i) Gat No.260-B admeasuring 1H-03R-90 Sq.Mtrs equivalent to 10390 Sq. Mtrs or thereabouts and (ii) Gat No.261, admeasuring OH-46R, equivalent to 4600 Sq. Mtrs or thereabouts; both together admeasuring 1H-49R-90 Sq.Mtrs equivalent to 14990 Sq. Mtrs or thereabouts, situate, lying and being at Village : Take Gholi, Taluka and Registration SubDistrict: Igatpuri, District and Registration District: Nashik and more particularly respectively described at PART-A and PART-B of the First Schedule thereunder and hereunder written and the factory building and other buildings and structures constructed and to be thereafter constructed thereon TOGETHER WITH all appurtenances thereto (all the said premises thereby granted, conveyed, assigned, transferred and assured or thereby granted, conveyed, assigned, transferred and assured or Intended so be are therein and hereinafter for brevity's....
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....and the Second Mortgaged Premises, the short particulars of the main items whereof are set out in the Second Schedule thereunder written TO HAVE AND TO HOLD the First Mortgaged premises and the Second Mortgaged premises unto and to the use of the vendor forever, subject to the proviso for redemption therein contained. (4) By and under the said Firs Mortgage and the second Mortgage (hereinafter collectively referred to as "the said Mortgages") the Mortgagor Company interalia agreed that in the event of the Mortgagor Company committing default in payment of any instalment of the said loan of Rs.1,45,00,000/- (Rupees One Crore Forty Five Lacs Only) and the said additional loan of Rs.50,00,000/- (Rupees Fifty Lacs Only) (hereinafter collectively referred to as "the said loans) or any part thereof or of the interest thereon on their respective due dates as mentioned in the said First Mortgage and the said Second Mortgage, the Vendor has the power to take over the possession of the First Mortgaged premises and the Second Mortgaged Premises and to sell, transfer, assign, deal with and dispose off the same and to appropriate the sale proceeds thereof towards the outstanding amounts of t....
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....e to the said advertisement, the Purchaser by its Letter dated 22nd June 1998, addressed to the Vendor, offered to purchase the said properties at or for the price of Rs.2,25,00,000/- (Rupees Two Crores Twenty Five Lacs Only) in accordance with the said General Conditions of Sale, which the Vendor accepted and agreed to sell the said properties to the Purchaser in "as is where is and what is" basis on the said General Conditions of Sale and on the terms and conditions recorded in its Letter dated 14th August 1998 and on the terms and conditions hereinafter recorded. (9) The parties hereto are now desirous of recording the terms and conditions of sale and to enter into and execute an Agreement for Sale herein, which the Vendor has agreed to do in the manner hereinafter appearing. NOW THIS AGREEMENT WITNESSETH AND IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: 1. The Vendor shall sell to the Purchaser and the Purchaser shall purchase from the Vendor, the said properties being (a) ALL THOSE pieces or parcel of Non-Agricultural (N.A. land, bearing (i) Gat No.260-B, admeasuring 1H-03R90Sq.Mtrs equivalent to 10390 Sq.Mtrs or thereabouts and (ii) Gat N....
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....000 on or before 15/10/2000 22. Rs.5,00,000 on or before 15/11/2000 23. Rs.5,00,000 on or before 15/12/2000 24. Rs.5,00,000 on or before 15/01/2001 25. Rs.5,00,000 on or before 15/02/2001 26. Rs.5,00,000 on or before 15/03/2001 27. Rs.5,00,000 on or before 15/04/2001 28. Rs.5,00,000 on or before 15/05/2001 29. Rs.5,00,000 on or before 15/06/2001 30. Rs.5,00,000 on or before 15/07/2001 31. Rs.5,00,000 on or before 15/08/2001 Total ------------------- Rs.1,58,85,000 ------------------- Together with interest on the said balance sum of Rs.1,58,75,000/- (Rupees One Crore Fifty Eight Lacs Seventy Five Thousand Only) or the balance hereof remaining unpaid or outstanding for the time being at rate of 5.5% per annum above the Vendor's reference rate (which at present is 16% per annum), with effect from 14th August 1998, due and payable quarterly on the 28th day of February, the 31 day of May, the 31 day of August and the 30th day of November, every year for the respective periods ending on these dates and the balance at the time of payment of the last instalment of the said balance purchase price, commencing from the 31* day of August, 1998....
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....t Schedule hereunder written and the plant, machinery etc described in the Second Schedule hereunder written in favour of the Purchaser or its nominee or nominees and if required shall execute any other documents/ agreements, writings etc for the same at the costs and expenses of the Purchaser including the stamp duty and registration charges payable in respect thereof. 4. It has been clearly agreed, confirmed, understood and accepted by the Purchaser that :- (a) The Purchaser has prior to the submission of the offer for purchase of the said properties, taken inspection of the same and have fully and completely satisfied itself about the state of the same. The Purchaser has taken inventory of the said plant, machinery etc described in the Second Schedule hereunder written and have fully and completely satisfied itself about the state of the same. The Purchaser shall not raise any dispute or objection of any nature whatsoever as to the right, title and interest of the Mortgagor Company to the same and/or the right of the Vendor to deal with and dispose off the same. The said properties are sold to the Purchaser in the condition in which they are on "as is where is and what is"....
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....e this Agreement and enter upon and take possession of the said properties and forfeit the amount till then paid by the Purchaser to the Vendor and to put up the said properties for resale/ disposal in its absolute discretion and in such case the Purchaser shall hand back the peaceful possession of the said properties to the Vendor and all costs, charges and expenses incurred by the Vendor due to such default shall be borne and paid by the Purchaser. Without prejudice to the rights of the Vendor to claim damages in case of any short fall that may arise by reason of resale of the said properties and the damage suffered consequently, the Purchaser shall be bound to make good any deficiency arising on such resale by the Vendor and the Purchaser shall not be entitled to make any claim in respect of any amount in the event of the said properties on resale realizing a higher price than that offered by the defaulting Purchaser. 6. It is expressly agreed and declared that notwithstanding Section 55 of the Transfer of Property Act, 1882 or any other enactment for the time being in force in that behalf, the Vendor shall not be bound to disclose to the Purchaser any defect whether material....
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.... etc in respect of the documents of the said properties or on account of any covenant for production of title deeds is defective or insufficient. 13. The Purchaser shall make its own arrangements for getting required power connection, water and other facilities and shall pay arrears of rates and taxes of the said properties and shall meet all the costs of whatsoever nature to be incurred in that behalf. The Vendor accepts no liability in this behalf and the Vendor shall not be responsible for the loss, if any, incurred by the Purchaser on account of not being able to get the necessary, water, power and other Infrastructure. The Purchaser shall make its own inquiries about the arrears of dues for supply of power, water and other facilities, if any and the same shall be borne and paid by the Purchaser. 14. The Purchaser hereby agrees and declares that it has expressly waived all rights under the Transfer of Property Act, 1882 and more particularly the rights under Section 55 of the said Act. 15. Any notice required to be served on the Purchaser shall for the purpose of this Agreement be deemed to be sufficiently served, if it is left at the Registered Office of the Purchaser....
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.... that the respondent failed to honour agreement and as such number of communications were made to the respondent/corporate debtor either to make payment or the appellant will take back possession of the property in question. The record reflects that several opportunities were given for payment of the consideration amount failing which the appellant had communicated that it will terminate the agreement and take back possession of the property in question. However, it continued for several years. Even OTS was also offered. The appellant claims that as per OTS the entire consideration amount was not paid whereas the respondent has taken a plea that though there were two OTS i.e. dated 19.02.2008 and 20.02.2008, the respondent settled the dispute by making payment of Rs. 2 crore and by issuance of NCD of Rs.31 lakhs. Learned counsel for the respondent on the one hand has argued that the aforesaid two OTS were settled by payment of Rs.2 crores and NCD of Rs.31 lakhs. However, it is stand of the appellant that as per OTS entire due was not paid. On behalf of appellant it has been asserted that OTS dated 19.02.2008 was in relation to debt of Rs.852 lakhs whereas OTS dated 20.02.2008 was i....
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....after initiation of CIRP neither IRP or RP was competent to control the said property in view of rider as incorporated in Section 18(f) Explanation (a). It is appropriate to quote the said provision as follows: "18. The interim resolution professional shall perform the following duties, namely:- (a) xxxx (b) xxxx (c) xxxx (d) xxxx (e) xxxx (f) take control and custody of any asset over which the corporate debtor has ownership rights as recorded in the balance sheet of the corporate debtor, or with information utility or the depository of securities or any other registry that records the ownership of assets including- (i) assets over which the corporate debtor has ownership rights which may be located in a foreign country; (ii) assets that may or may not be in possession of the corporate debtor; (iii) tangible assets, whether movable or immovable; (iv) intangible assets including intellectual property; (v) securities including shares held in any subsidiary of the corporate debtor, financial instruments, insurance policies; (vi) assets subject to the determination of ownership by a court or authority; (g) xxxx. Explanation.-For the purposes of th....
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...., of itself, create any interest in or charge on such property. This Court in Narandas Karsondas V. S.A. Kamtamk and Anr (1977) 3 SCC 247, observed: A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prosad V. Ram Mohit Hazra MANU/SC/0212/1966: 1967 1 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein." In India, the word `transfer' is defined with reference to the word `convey'. The word `conveys' in Section 5 of Transfer of Property Act is used in the wider sense of conveying ownership.......that only on execution of conveyance ownership passes from one party to another........." In Rambhau Namdeo Gajre V Narayan Bapuji Dhotra MANU/SC/0680/2004:[2004 (8) S....
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....nveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales. 17. It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularize the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship." 21. Similarly in Rambhau Namdeo Garje Vs Narayan Bapuji Dhotra (Dead) through LRs (2004) 8 SCC 614 in paras 8 to 13 the point has been settled which has been quoted below:- "8. It is seen that many a times a transferee takes possession of the property in part performance of the contract and he is willing to perform his part of the contract. However, the transferor some how or the other does not complete the transaction by executing a registered deed in favour of the transferee, which ....
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....ally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party. 11. The question which falls for our consideration is: "Whether the doctrine of part performance could be availed of by the defendant with whom the respondent had never entered into an agreement of sale?" It is an admitted case of the parties that the plaintiff/respondent had entered into an agreement of sale with Pishorrilal on 16.6.1961 and who had taken possession of the suit land in part performance thereof. Sale deed had not been executed and registered in his favour. Pishorrilal did not take any steps for getting the agreement of sale specifically enforced and obtain a registered sale deed in respect of the suit land. Within a period of 2- 1/2 months Pishorrilal executed a similar agreement of sale dated 1.9.1961 in favour of the appellant and put him in possession of the suit land. Pishorrilal did not have any right to enter into an agreement of sale with the appellant as he was not the owner of the suit land. The appellant did not care to ascertain the title of Pishorrilal to the s....
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....the land gets conveyed only by registered sale deed. It is not in dispute that the lands sought to be covered were having value of more than Rs. 100. Therefore, unless there was a registered document of sale in favour of the proposed transferee agreement-holders, the title of the land would not get divested from the vendor and would remain in his ownership. There is no dispute on this aspect. However, strong reliance was placed by learned counsel for Respondent 3 on Section 53-A of the Transfer of Property Act. We fail to appreciate how that section can at all be relevant against the third party like the appellant-State. That section provides for a shield of protection to the proposed transferee to remain in possession against the original owner who has agreed to sell these lands to the transferee if the proposed transferee satisfies other conditions of Section 53-A. That protection is available as a shield only against the transferor, the proposed vendor, and would disentitle him from disturbing the possession of the proposed transferees who are put in possession pursuant to such an agreement. But that has nothing to do with the ownership of the proposed transferor who remains ful....
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....a settled position of law that IBC is a complete code and Section 238 overrides all other laws. The NCLT in its residuary jurisdiction is empowered to stay the termination of the agreement if it satisfies the criteria laid down by this Court in Gujarat Urja (supra). In any event, the intervention by the NCLT and NCLAT cannot be characterized as the re-writing of the contract between the parties. The NCLT and NCLAT are vested with the responsibility of preserving corporate debtor's survival and can intervene if an action by a third party can cut the legs out from under CIRP. 28. In Gujarat Urja (supra), the contract in question was terminated by a third party based on an ipso facto clause, i.e., the fact of insolvency itself constituted an event of default. It was in that context, this Court held that the contractual dispute between the parties arose in relation to the insolvency of the corporate debtor and it was amenable to the jurisdiction of the NCLT under Section 60(5)(c). This Court observed that (SCC pp. 262-63, para 69) "69....NCLT has jurisdiction to adjudicate disputes, which arise solely from or which relate to the insolvency of the corporate debtor... The nexus wit....
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....lvency. The jurisdiction of NCLT under Section 60(5)(c) of IBC cannot be invoked in matters where a termination may take place on grounds unrelated to the insolvency of the corporate debtor. Even more crucially, it cannot even be invoked in the event of a legitimate termination of a contract based on an ipso facto clause like Article 9.2.1(e) herein, if such termination will not have the effect of making certain the death of the corporate debtor. As such, in all future cases, NCLT would have to be wary of setting aside valid contractual terminations which would merely dilute the value of the corporate debtor, and not push it to its corporate death by virtue of it being the corporate debtor's sole contract (as was the case in this matter's unique factual matrix). 177. The terms of our intervention in the present case are limited. Judicial intervention should not create a fertile ground for the revival of the regime under Section 22 of SICA which provided for suspension of wide-ranging contracts. Section 22 of the SICA cannot be brought in through the back door. The basis of our intervention in this case arises from the fact that if we allow the termination of PPA which is th....