TaxTMI 
TaxTMI 
2024 (4) TMI 321
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....Ms. Shalini Basu, Ms. Trisha Dhera, Advocates for SRA. JUDGMENT ASHOK BHUSHAN, J. This Appeal by Shareholder of the Corporate Debtor has been filed challenging order dated 04.01.2024 passed by National Company Law Tribunal, Kolkata Bench, Court-II, Kolkata in IA No.1054/(KB)/2023, by which order the Adjudicating Authority has allowed the Application filed by Resolution Professional ("RP") for approval of the Resolution Plan submitted by Shriram Multicom Pvt. Ltd. - Respondent No.3 herein. 2. Brief facts of the facts of the case giving rise to this Appeal are: (i) The Appellant, holding Company of Corporate Debtor - SARGA Hotel Pvt. Ltd. has leased a parcel of land admeasuring 3.5 Acres to the Corporate Debtor, on which a five-star Hotel was established. Earlier named as Shristi Hotel, subsequently known as "Westin Hotel", run by the Corporate Debtor. (ii) On Section 7 Application under Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the "Code") filed by Yes Bank Ltd. the Corporate Insolvency Resolution Process ("CIRP") commenced against the Corporate Debtor by order dated 11.02.2022. Shri Avishek Gupta, the Respondent No.1 herein was a....
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....ng to the balance land outside the leasehold area. The Adjudicating Authority committed error in granting reliefs and concessions with regard to utilities and shared services, which were situated outside the leasehold area. The concessions having sought by the SRA without consent of the Appellant and despite the fact that shared utilities are situated on a land which is owned by the Appellant. The shared utilities and services were not part of Information Memorandum, hence, no reliefs and concessions could have been granted with regard to said shared utilities and services. The Resolution Plan cannot deal with properties, which is not part of the Information Memorandum. It is submitted that the Appellant has filed two separate Applications praying for dismissal of IA No.1054 of 2023 and for providing copy of the Resolution Plan. The Adjudicating Authority by the impugned order has bound the Appellant in providing unfettered and unbridled access to the shared assets, utilities and equipment/ installations, which belong to the Appellant. The Corporate Debtor was merely allowed to use the same being a subsidiary of the Appellant. The Appellant having challenged the Resolution Plan, th....
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....hts over the relevant assets and had rights to access relevant assets for the purpose of provision of common shared services. It is submitted that the Appellant was well aware of the Resolution Plan, since its Managing Director was part of the CoC and as Ex-Director of the CD, who was given the copy of the Resolution Plan. All details pertaining to CIRP including the Plan were well within the knowledge of the Appellant. It is further submitted that relevant part of Resolution Plan has already been shared with the Appellant in pursuance of order in IA No.1808 of 2023. It is submitted that IA No.690 of 2022 having decided by separate order with regard to which Company Appeal (AT) (Insolvency) No.71 of 2024 has been filed by the Appellant, hence, no submissions are advanced in this Appeal. It is submitted that various Applications filed by the Appellant were only an attempt to obstruct and frustrate resolution of the Corporate Debtor. 6. The learned Senior Counsel for the CoC also refuted the submissions of the Appellant and submits that the Appellant being the erstwhile Promoter, has no locus to challenge the approval of the Resolution Plan. It is submitted that treatment of certa....
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.... shared services have been continuing since 2007. Shared services were paid by the Corporate Debtor and assets created for utilities and services in the land outside the area of lease hold land was paid by the Corporate Debtor. All assets are mentioned in Fixed Asset Register of the Corporate Debtor and Books of the Corporate Debtor. There was no question of any license to the Corporate Debtor by the Appellant since they were same entity. There was no question of termination of license, since there was no license in existence. The Appellant had allowed the Corporate Debtor to establish the shared services and utilities on land belonging to the Appellant, which is being used both by the Corporate Debtor and the Appellant to his residential and commercial block. Corporate Debtor having been sold as a going concern, SRA cannot be denied use of the shared utilities. 8. We have considered the submissions of learned Counsel for the parties and have perused the records. 9. The Resolution Plan submitted by Respondent No.3, has been approved by the CoC with 100% vote share. There are only very limited ground to challenge the approval of Resolution Plan. The Hon'ble Supreme Court in K.....
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....39;). The Utilities Equipment/ Installation were built by using the funds of the Corporate Debtor are the assets of Corporate Debtor, and form an integral part/lifeline of its business and critical to the overall functioning of the Hotel and are in place since the inception/beginning of Hotel operations, without which operations of the Hotel comprising of 304 rooms, banquets, bar & restaurants, lawn, parking, gym etc. cannot operate at and is a potential risk to life of guest/staff at the Hotel Building. The Utilities Equipment/Installations were constructed/erected/installed, both on the Lease Land and outside the perimeter of the Leased Land but within 8 Acres of la i.e. the Entire Land, to cater the requirement of both Hotel Building and Residential Tower i.e. on a sharing basis ('Shared Services'). The electric cables, water pipe lines, drainage, plumbing. Heating Ventilation and Air Conditioning (HVAC) pipelines, Fire Fitting System, High Speed Diesel (HSD) pipelines etc. are interconnected with the Hotel Building erected on the Leased Land and Residential Tower erected outside the Leased Land but within 8 Acres Land, i.e., the Entire Land. The Corporate Debtor is main....
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....g Area Marked as '12' 13. Boiler Located at Lower Basement of Residential Tower 14. Water supply connection by New Town Kolkata Development Authority Interconnected beneath land 15. Sewage and Drainage Connection Interconnected beneath land 16. Electric cables, Plumbing lines, HVAC pipelines, Diesel Pipelines etc. Interconnected 17. Information Technology (IT) Server 6th Floor of the Hotel Building 18. Other Miscellaneous Services Interconnected 85. The Corporate Debtor shall have the right to relocate the Utilities Equipment/Installations to the Leased Land or erect a new utility equipment on Leased Land within a period of 5 years extendable by a further period of two years from the Effective Date, at its own expenses. If new utilities and equipment is erected on the Leased Land, the Resolution Applicant/Corporate Debtor shall have the right to dismantle the existing Utilities Equipment/Installations and use it in the manner considered fit by Corporate Debtor. During the period of 5 years or 7 years, if extended, if the SIDCL or the Residents of the Serviced Apartment Tower II/ Residential Welfare Society/Associatio....
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....ies Act 2013, many others fall under the power and jurisdiction of different government authorities/departments. This Adjudicating Authority has power to grant reliefs, waivers and concessions only with respect to the reliefs, waivers and concessions that are directly in relation to the Code and the Companies Act 2013 (within the powers of the NCL T), and these are granted keeping in mind the object of the Code. Reliefs, waivers and concessions that fall within the domain of other government department/authorities are not granted." 12. When we read the paragraph-9 and paragraph 12 together, it is clear that the reliefs and concessions seeking a direction that Appellant shall continue to give unfettered access to all its assets, including any movable assets located on properties that do not belong to the Corporate Debtor, on the same terms and in the same manner as were in existence prior to the insolvency commencement date, has been granted by the Adjudicating Authority. It is relevant to notice that at the time when this utilities/ equipment/ installations were made the Corporate Debtor was subsidiary of the Appellant, the holding Company. Shared utilities and equipment install....