TaxTMI 
TaxTMI 
2023 (4) TMI 1304
X X X X Extracts X X X X
X X X X Extracts X X X X
....red to as I&B Code) against an order dated 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 Com....
X X X X Extracts X X X X
X X X X Extracts X X X X
....-time settlement (OTS) of the dues under the ICD as well as the balance outstanding 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 transacti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s Bench has attained finality. Hence the Respondent has committed further mistake at this stage also 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Adjudicating Authority under subsection (1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding 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 erre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....16 and the Companies Act 2013 with regard to the views of the Hon'ble BIFR/AIFR: Section 63: Civil court not to have jurisdiction 63. No civil court or authority shall have jurisdiction 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 rea....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., nominated the Corporate Debtor (Applicant herein) as the beneficiary for effecting the transfer in its name, in respect of Igatpuri Unit. However, even after receiving the payment as proposed under the Resolution Plan and despite several communications 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r Corporate Deposit of Rs.8.9 crores. 4. It is further case of the appellant that since Respondent No.1/Kitply Industries Ltd failed to pay the instalment as stipulated in the agreement as well as had also failed to pay the Inter Corporate Deposit the Managing Director of Respondent 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent No.1, however, failed to make payments in terms with the communication dated 19.02.2008 and 20.02.2008 which was extended vide communications dated 03.03.2008 and 04.03.2008 respectively. Thereafter various reminders were made by the appellant No.1. 6. Subsequently on 02.05.2008 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 amount....
X X X X Extracts X X X X
X X X X Extracts X X X X
....thout being influenced by the order dated 14.03.2014. It is the stand of the Appellant that he was not aware about the outcome of the BIFR proceedings pursuant thereto. In the meanwhile on 01.05.2018 the NCLT vide order dated 01.05.2018 initiated Corporate Insolvency Resolution Process (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 p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....exure B 6 DETAILS OF HOW AND WHEN DEBT INCURRED: Annexure C 7 DETAILS OF ANY MUTUAL CREDIT, MUTUAL DEBTS, OR OTHER MUTUAL DEALINGS BETWEEN THE CORPORATE DEBTOR AND THE CREDITOR WHICH MAY BE SET-OFF AGAINST THE CLAIM: None 8 DETAILS OF ANY SECURITY HELD, THE VALUE OF THE SECURITY, AND THE DATE IT WAS GIVEN Second charge on Land and Building, Plan & Machinery and all other Assets of the Company situated at (1) 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 A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f Igatpuri unit. It is the case of the appellant that on 25.01.2019 he had requested for copy of the resolution plan as approved by NCLT and thereafter on 05.02.2019 the IRP forwarded a portion of resolution plan submitted by SREI Multiple Asset Investment Trust Vision India Fund which related to proposal for other liabilities. On 06.02.2019 an email was sent to the appellant wherein portion of resolution plan was quoted. The said communication dated 02.06.2019 has been brought 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, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Penalties). We also draw your attention to section 31 (1) which states that the approved Resolution Plan "shall be binding on the corporate debtors and its employees, members, creditors, guarantors and other stakeholders. Your attention is also drawn to Section 238 of the Code which states that "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. Thus, the approved Resolution plan is an order and is binding on all the stakeholders of the company. Thus, as 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 pe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing to Page 171 and onwards of the Memo of appeal i.e. copy of agreement for sale has referred to Clause 5 of the Agreement and submitted that in case of default in payment of the balance amount of the purchase price the vendor i.e. appellant was having right to cancel the agreement and terminate the same and take possession over the property in question. He submits that though agreement, in view of non-payment of instalment, was cancelled and terminated by the appellant, despite his best efforts he could not take back possession of the property in question. He explained certain reasons for delay in not taking such steps. He highlights that repeatedly after cancellation of the 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 Igatp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rs paras 39 and 40. By way of referring to para 11, 15 to 17 the judgement reported in (2012) 1 SCC 656 Suraj Lamp and Industries Pvt Ltd Vs Sate of Haryana and ors, in para 8 to 13 of case reported in (2004) 8 SCC 614 Rambhau Namdeo Gajre Vs Narayan Bapuji Dhotra (Dead) through LRs it has been argued that law is settled on the point that an agreement to sell immovable property, without being finally registered does not create title in the name of so called vendee. 11. Taking clue from the afore referred judgements, Mr. Savla, learned senior counsel has argued that admittedly till date sale deed has not been executed by the appellant in favour of the Corporate Debtor and as such 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 propositio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed 20.02.2008 entered between the Corporate Debtor and the Appellants. 7. It is germane herein to note the facts leading to the issuance of OTS dated 20.02.2008 by the Appellants in favour of the Corporate Debtor which are as follows: a) That an Agreement to Sell dated 03.09.2008 (Agreement) was entered into between the Corporate Debtor and the Appellant for purchase of the Igatpuri Unit. The Corporate Debtor being the purchaser had to pay Rs.2,25,00,000.00 (Rupees Two Crores Twenty five lakhs only) as consideration for the Igatpuri Unit. That out of Rs.2,25,00,000.00 (Rupees Two Crores Twenty Five lakhs only) the Corporate Debtor initially paid an amount of Rs.10 lakhs as earnest money 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 Agreem....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (vi) of Clause 2 of letter dated 20.02.2008 which has been quoted hereinabove makes it clear that the entire consideration amount for executing the sale deed as per agreement to sell was paid to the appellant. He submits both communication i.e. 19.2.2008 and 20.2.2008 cannot be segregated; rather both the letter can be considered jointly in similar manner and once on the basis of aforesaid so called two OTS payment was made by the Corporate Debtor, the appellant may not be permitted to take a plea that OTS dated 19.02.2008 was for the different purpose. On this issue he has placed heavy reliance on a judgement of Hon'ble Supreme Court to elaborate principle of reddendo singulo singulis and he referred to para 56 of 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in acceptance payment was also received by the appellant the appellant, was having no option but to transfer the property of Igatpuri to the Corporate Debtor. It has been concluded that despite approval of the resolution plan since appellant was not proceeding for execution the Corporate Debtor was having no option but to approach the NCLT by way of filing an application under Section 60(5) of IBC which has been allowed and there is no error in the impugned order. 16. Other respondents in the present appeal are the official of the appellant and they are formal in nature. 17. Besides hearing learned counsel for the parties we have minutely examined materials available on record. Admittedly the property of Igatpuri Unit is in relation 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... dated the 22nd day of February 1993, executed by the Mortgagor Company in favour of the Vendor land Lodged for registration in the Office of the Sub- Registrar of Assurances at Mumbai under Serial No.BBM-2592 of 1993 on the same day (hereinafter referred to as "the said First Mortgage") in consideration of the sum of Rs.1,45,00,000/- (Rupees One Crore Forty-Five Lacs Only) lent and advanced/ agreed to be lent and advanced by the Vendor to the Mortgagor Company, the Mortgagor covenanted to repay to the Vendor the said sum of Rs.1,45,00,000/- (Rupees One Crore Forty-Five Lacs Only) (hereinafter referred to as "the said loan") by quarterly instalments mentioned and as security for the repayment of the said loan Together with interest, additional interest, compound interest and all costs, 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 an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....000/- (Rupees Fifty Lacs Only) (hereinafter referred to as "the said additional loan) by quarterly instalments Together with Interest, additional interest and compound interest as therein mentioned and as security for the repayment of the said additional loan Together with interest, additional interest and compound interest as therein mentioned and as security for the repayment of the said additional loan Together with interest, additional interest, compound interest and all costs, charges and expenses and all other moneys payable by the Mortgagor Company to the vendor under the said Second Mortgage, the Mortgagor Company interalia further granted, conveyed, assigned, transferred and assured unto the Vendor, the First Mortgaged Premises described in PART-A and PART-B of the First Schedule thereunder and hereunder written 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 Mortgag....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Premises described in the First Schedule hereunder written and the plant, machinery, etc particulars whereof are set out in the Second Schedule hereunder written (hereinafter collectively referred to as "the said properties") on the 24th day of January, 1998 and since then the Vendor is in possession of the said properties. (7) Further in exercise of the power of sale reserved/vested unto it under the said Mortgages and under the provisions of Section 29(1) of the State Financial Corporation Act, 1951, read with the said Notification of the Government of India, dated 11th December 1986, the Vendor advertised the sale of the said properties by inviting offers for the purchase of the same on "as is where is and what is" basis on the General Conditions of Sale mentioned therein, a copy of which was given to the Purchaser. (8) In response 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 p....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... follows: No. of Installments Amount Due Date 1. Rs.5,75,000 on or before 15/02/1999 2. Rs.5,00,000 on or before 15/03/1999 3. Rs.5,00,000 on or before 15/04/1999 4. Rs.5,00,000 on or before 15/05/1999 5. Rs.5,00,000 on or before 15/06/1999 6. Rs.5,00,000 on or before 15/07/1999 7. Rs.5,00,000 on or before 15/08/1999 8. Rs.5,00,000 on or before 15/09/1999 9. Rs.5,00,000 on or before 15/10/1999 10. Rs.5,00,000 on or before 15/11/1999 11. Rs.5,00,000 on or before 15/12/1999 12. Rs.5,00,000 on or before 15/01/2000 13. Rs.5,00,000 on or before 15/02/2000 14. Rs.5,00,000 on or before 15/03/2000 15. Rs.5,00,000 on or before 15/04/2000 16. Rs.5,00,000 on or before 15/05/2000 17. Rs.5,00,000 on or before 15/06/2000 18. Rs.5,00,000 on or before 15/07/2000 19. Rs.5,00,000 on or before 15/08/2000 20. Rs.5,00,000 on or before 15/09/2000 21. Rs.5,00,000 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Saturday, Sunday or Public Holiday under the Negotiable Instrument Act, the immediately next preceding working day shall be taken as the due date PROVIDED FURTHER that the payment of such instalment of interest/ the said balance purchase price shall be made by cheque/draft drawn on the Mumbai Branch of any Bank, which shall either be handed over at the Registered Office of the Vendor at least two days before the due date for the payment of such instalment or sent to the Vendor by Registered Post with Acknowledgment due at least six days before such due date for the payment of instalment. 3. On payment of the full purchase price by the Purchaser to the Vendor as aforesaid and upon the purchaser carrying out all its obligations and of serving and performing all terms, covenants, conditions and stipulations herein contained, the Vendor shall put the purchaser in possession of the said premises described in the First Schedule hereunder written and hand over the plant, machinery etc described in the Second Schedule hereunder written and execute a conveyance in respect of the said premises described in the First Schedule hereunder written and the plant, machinery etc described i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and the terms and conditions contained in this Agreement. (e) The Purchaser has agreed to purchase the said properties with specific agreement and understanding that with effect from 14th August 1998, the said properties and their safety and security shall be at the risk of the Purchaser and the Purchaser shall not be entitled to claim any loss or damage that may be done or suffered for any reason whatsoever to the said properties after 14th August 1998. The Purchaser may, however with the permission of the Vendor appoint its own security for safeguarding the said properties over and above the security appointed by the Vendor. The Purchaser shall get the said properties insured at its costs. 5. It is agreed that in the event of default being committed by the Purchaser in payment of the balance of the said purchase price and/or interest thereon on their respective due dates (time being the essence of the contract) and/or failing to comply with any of the terms and conditions of this Agreement or if the sale is not completed by reason of any default of the Purchaser, the Vendor shall have the right to cancel the arrangement and to terminate this Agreement and enter ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ty exercised and/or whether there are any arrears due or not and also shall not be liable or entitled to look into the application of the proceeds of sale by the Vendor. 10. The Vendor will execute the documents as seller and will give only a covenant against encumbrances by the Vendor as the first Mortgagee and purchaser shall accept the same. 11. The Vendor shall obtain the necessary consent in writing from Maharashtra State Financial Corporation who is the pari-passu charge holder for the sale of the said properties to the Purchaser or its nominee or nominees. 12. (a) The Vendor shall not be liable to answer any requisition in respect of which it does not have any information, audited accounts or documents etc and the Purchaser shall not be entitled to revoke the sale or set off any amount against the purchase price or reduce the amount of offer on that or any other ground whatsoever. (b) No requisition or objection whatsoever shall be made or taken in respect of title to the said properties or on account of any document being unregistered, unstamped or insufficiently stamped or on account of absence of any covenant for produ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nstituted Attorneys the day and year first hereinabove written. THE FIRST SCHEDULE ABOVE REFERRED TO (Description of Land and Buildings) PART-A ALL THAT piece or parcel of Non-Agricultural (N.A.) Land bearing Gat No.260-B, admeasuring 1H-03R-90Sq.Mtrs equivalent to 10390 Sq. Mtrs or thereabouts, situate, lying and being at Village: Take Ghoti, Taluka, Panchayat Samiti and Registration SubDistrict: Igatpuri, District, Zilla Parishad and Registration District: Nashik and bounded as follows: On or to-wards the NORTH by land bearing Gat No.263(part) and Agra-Road; On or to-wards the SOUTH by land bearing Gat No.261; On or to-wards the EAST by land bearing Gat No.262; and On or to-wards the WEST by land bearing Gat No.260-A 18. On examination of the agreement it is evident that schedule for payment was incorporated in the agreement. Clause 5 of the agreement stipulates that the parties had agreed that in the event of default of the purchaser in payment of the balance of said purchase price the vendor was having right to cancel the arrangement and to terminate this agreement and enter upon and take possession of the said property a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h December, 2008 which is in Volume II of the memo of appeal starts from Page 210 to 211 it is evident that in view of failure on the part of the respondent the appellant by letter dated 30th December, 2008 enforced its right in terms of Clause 5 of the agreement and terminated the said agreement and withdrawn the OTS with immediate effect. The respondent was further intimated regarding forfeiture of amount paid by it till date and he was called upon to hand back peaceful possession of the aforesaid assets. It is admitted case that the Respondent has never assailed termination of the agreement. However, we are of the opinion that in an appeal filed against the impugned order we may not record any finding in respect of either validity of the agreement to sale or payment of amount by the CD to the appellant in terms of the OTS. Such issue can be examined or dealt with in appropriate proceeding. In the present case there is no dispute that till date in view of agreement to sale of 1998, the appellant has not executed sale deed and conveyed the property of Igatpuri to the CD. Meaning thereby that in respect of the property in question title deed is still with the appellant. Once it is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion plan "It is hereby clarified that the unit of the Corporate Debtor located at Igatpuri is in dispute between the Corporate Debtor and SICOM/SICOM ARC Limited. Post approval of the Resolution Plan and settlement of all dues of SICOM/SICOM ARC Ltd, SICOM/SICOM ARC Ltd to transfer the Igatpuri unit in the name of the Resolution Applicant or its nominee." 20. On perusal of the aforesaid communication which is part approval of the resolution plan in respect of Kitply Industries Ltd it is evident that transfer of Igitpuri was to be effected only after settlement of the dispute. If there was still dispute in between parties it was not permissible for the NCLT to direct the appellant for transferring the property of Igatpuri in favour of CD or its nominee. Though it is not necessary to reiterate but it is established that unless in terms of agreement to sale, sale deed is finally executed after accepting full consideration amount, title always lies with the vendor. This issue has already been noticed and settled by Hon'ble Supreme Court Judgements on which reliance was placed by learned counsel for the appellant. We may reproduce paras 11, 15 to 17 the judgement reported i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....create any interest in an immovable property. The observations by the Delhi High Court, in Asha M Jain V Canara Bank - MANU/DE/1304/2001: 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintended misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law. 16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ords from which the terms necessary to construe the transfer can be ascertained; (4) the transferee must in part performance of the contract take possession of the property, or of any part thereof; (5) the transferee must have done some act in furtherance of the contract; and (6) the transferee must have performed or be willing to perform his part of the contract." 9. If these conditions are fulfilled then in a given case there is an equity in favour of the proposed transferee who can protect his possession against the proposed transferor even though a registered deed conveying the title is not executed by the proposed transferor. In such a situation equitable doctrine of part performance provided under Section 53-A comes into play and provides that "the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract." 10 .Protection provided under Section 53-A of the Act to the proposed transferee is a shiel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t of the proposed vendee in the suit property. As per Section 54 of the Act, the title in immovable property valued at more than Rs. 100/- can be conveyed only by executing a registered sale deed. Section 54 specifically provides that a contract for sale of immovable property is a contract evidencing the fact that the sale of such property shall take place on the terms settled between the parties, but does not, of itself, create any interest in or charge on such property. It is not disputed before us that the suit land sought to be conveyed is of the value of more than Rs. 100. Therefore, unless there was a registered document of sale in favour of the Pishorrilal (proposed transferee) the title of the suit land continued to vest in Narayan Bapuji Dhotra (original plaintiff) and remain in his ownership. This point was examined in detail by this Court in State of U.P. Vs. District Judge & Ors., MANU/SC/0020/1997: air 1997 SC 53, and it was held thus: "Having given our anxious consideration to the rival contentions we find that the High Court with respect had patently erred in taking the view that because of Section 53A of the Transfer of Property Act the proposed transferees....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dent but by Pishorrilal, therefore, the privity of contract is between Pishorrilal and the appellant and not between the appellant and the respondent. The doctrine of part performance as contemplated in Section 53-A can be availed of by the proposed transferee against his transferor or any person claiming under him and not against a third person with whom he does not have a privity of contract." 22. On the point of jurisdiction of NCLT or NCLAT in respect of interpretation of agreement/contract which had already occurred prior to initiation of CIRP it has been held that neither NCLT nor NCLAT is having jurisdiction to adjudicate. In this context it would be profitable to reproduce paras 16, 24, 28 to 31 of judgement of Hon'ble Supreme Court reported in (2022) 2 SCC 583 Tata Consultancy Services Ltd Vs. Vishal Ghisulal Jain which are quoted here below: "16. Based on the appeal, two issues have arisen for consideration before this Court: 16.1 Whether the NCLT can exercise its residuary jurisdiction under Section 60(5)(c) of the IBC to adjudicate upon the contractual dispute between the parties; and 16.2 Whether in the exercise of such a residuary jurisdi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the NCLT does not have any residuary jurisdiction to entertain the present contractual dispute which has arisen dehors the insolvency of the Corporate Debtor. In the absence of jurisdiction over the dispute, the NCLT could not have imposed an ad-interim stay on the termination notice. The NCLAT has incorrectly upheld the interim order of the NCLT. 30. While in the present case, the second issue formulated by this Court has no bearing, we would like to issue a note of caution to the NCLT and NCLAT regarding interference with a party's contractual right to terminate a contract. Even if the contractual dispute arises in relation to the insolvency, a party can be restrained from terminating the contract only if it is central to the success of the CIRP. Crucially, the termination of the contract should result in the corporate death of the Corporate Debtor. In Gujarat Urja (supra), this Court held thus: (SCC pp.309-10, paras 176-177) "176. Given that the terms used in Section 60(5)(c) are of wide import, as recognised in a consistent line of authority, we hold that NCLT was empowered to restrain the appellant from terminating PPA. However, our decision is premised upon ....