TaxTMI 
TaxTMI 
2024 (9) TMI 1093
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....Advocate for R - 1 For the Appellant : Mr. Aishvary Vikram and Mr. Lucky Sharma , Advocates For the Respondents : Ms. Aishwarya Prasad and Mr. Niraj Chamyal , Advocates for R - 2 . Mr. Rachit Mittal , Advocate for R - 1 JUDGMENT Ashok Bhushan , J. These two Appeals have been filed against the same order dated 11.01.2024 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi Bench, Court II in IA No. 1592 of 2019 filed by the New Okhla Industrial Development Authority (hereinafter referred to as "NOIDA")- Respondent No.1 herein. By the application, the Adjudicating Authority vide impugned order has allowed IA No. 1592 of 2019 and excluded the Plot No. SC-01/ D1, Sector 79 Noida from Resolution Plan submitted in the CIRP of the Corporate Debtor. 2. Brief facts of the case necessary to be noticed for deciding these Appeals are:- 2.1. NOIDA executed a Lease Deed dated 24.10.2011 in favour of Kindle Developers Pvt. Ltd., the Corporate Debtor herein allotting Plot No. SC-01/ D1, Sector 79 Noida. A Correction Deed dated 19.10.2012 was issued correcting the lease area. Allotment was made on premium of Rs.120.75 Cr. out of which 10% was paid and balance 90% w....
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....n the light of the application filed before it which is pending consideration and after taking interests of all stakeholders. Subsequent to the order passed by this Tribunal, the Adjudicating Authority passed an order on 12.10.2020 under which the NOIDA proceeded to pass an order on the application filed by the Corporate Debtor for restoration of the plot. The application for restoration was rejected by the NOIDA vide letter dated 10.11.2020. In the order dated 27.07.2020, this Appellate Tribunal while deciding Company Appeal (AT) (Insolvency) No. 605 of 2020 has observed that the Adjudicating Authority will record a clear finding in regard to cancellation/ subsistence of the lease after providing opportunity of hearing to all concerned parties. The Adjudicating Authority heard the parties and by order impugned dated 11.01.2024 allowed the IA No. 1592 of 2019 filed by the NOIDA holding that the plot in question is not the asset of the Corporate Debtor, the lease of the plot having already been cancelled on 13.08.2015. Against the order dated 11.01.2024, the Resolution Professional of the Corporate Debtor had filed an Appeal being Company Appeal (AT) (Ins.) No.574 of 2024 challengin....
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....ion by virtue of Section 18 (f) (vi). It is further submitted that the letter cancelling the lease was issued not by Chief Executive Officer but was issued by Assistant General Manager (Commercial) who has no authority to issue such cancellation letter. 5. Counsel for the NOIDA refuting the submissions of the Counsel for the Appellant submits that the Corporate Debtor had failed to pay the premium instalments, the lease was cancelled by letter dated 13.08.2015. The Corporate Debtor did not have any subsisting right in the land so as to the part of the Resolution Process. It is submitted that the cancellation of lease was done much before commencement of the CIRP. It is submitted that the NOIDA having never accepted the rent from the Corporate Debtor nor having given its assent expressly or impliedly for continuance of the Corporate Debtor, submission of the Appellant on the basis of Section 116 of the Transfer of Property Act are not applicable. During the CIRP, NOIDA has filed an application specifically pleaded that the Corporate Debtor has no right in the land, lease having already been cancelled on 13.08.2015. By order dated 10.11.2020 application which was filed by the Corpor....
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....lementation of the project and RTI application dated 13.07.2017 was filed to the Public Information Officer, NOIDA seeking various information with respect to the project of the Corporate Debtor. The RTI application was replied providing information about the dues from the CoC and cancellation of lease was not informed. The project was registered with UP RERA. NOIDA never took any action to get the registration of project cancelled. Homebuyers were never intimated about the cancellation of the lease. Construction was continued of the project. Cancellation letter has not been signed by the competent authority in terms of U.P. Industrial Area Development Act 1976. 7. We have heard Counsel for the parties and perused the record. For deciding both the Appeals, it shall be sufficient to refer to the pleadings in Company Appeal (AT) (Insolvency) No. 554 of 2024. 8. There is no dispute that the land was allotted to the Corporate Debtor on 24.10.2011 which lease was corrected on 19.10.2012. The order cancelling the lease was issued by the NOIDA on 13.08.2015. The copy of the Cancellation order has been filed by the Appellant as Annexure A-10. Order cancelling the lease provides as follow....
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.... this letter. Thanking you, Yours faithfully, Assistant General Manager (Commercial) Copy to:- 1. Chief Architect Planner, NOIDA. 2. Project Engineer (Work Circle-10), NOIDA. 3. Accounts Officer (Commercial) for necessary action. Assistant General Manager (Commercial)" 9. It is further to be noted that after cancellation of the lease after about 305 days, the Corporate Debtor made an application dated 14.06.2016 praying for restoration of plot which application was given in reference to the letter dated 13.08.2015 cancelling the commercial Plot No. SC-01/ D1, Sector 79 NOIDA. The NOIDA after hearing the parties has also rejected the application praying for restoration by order dated 10.11.2020 which order was passed after direction of the Adjudicating Authority dated 12.10.2020. The CIRP of the Corporate Debtor commenced on 09.03.2018. The plot in question on which Corporate Debtor took deposit from homebuyers for constructing a housing project stood cancelled due to non-payment of instalments by the Corporate Debtor much prior to initiation of the CIRP. There can be no dispute that the rights including the right of development of the plot are rights in land which ....
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....porate Debtor is a tenant holding over by virtue of Section 116 of the Transfer of Property Act. It is submitted that the Corporate Debtor being a tenant holding over the said is entitled to be included in the asset of the Corporate Debtor and the Adjudicating Authority committed error in directing for exclusion of the asset. It is further submitted that the cancellation of the lease is covered by determination of lease as contemplated under Section 111 of the Transfer of Property Act, 1882. It is submitted that the determination of lease whether by efflux of the time limited or by termination is a determination within the meaning of Section 111. There cannot be any quarrel that the lease can be determined in accordance with Section 111 of the Transfer of Property Act. Present is a case where determination of the lease has been made by NOIDA in accordance with the terms of the Lease Deed. Lessor has ample jurisdiction to cancel the lease as per the terms of Lease Deed itself in event the Corporate Debtor failed to deposit the instalment of the plot allotted to the Corporate Debtor. Reliance has been placed by the Appellant on Section 116 of the Transfer of Property Act which deals ....
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.... some kind in the party assenting to that to which he assents; also permission of the part of the loyalty assenting; but ordinarily it does not imply contribution or express concurrence. As used in some statutes, however, the term has been held to acquire affirmative, positive action on the part of the party assenting. It has been said that the term indicates the meeting of the minds of the contracting parties, and the word is applicable only to conduct before or at theme of the doing of an act and does not include an approval after the commission of an act. "Assent" has been distinguished from: "consent", "estoppel", "mere neglect to ascertain facts" and "ratification". [Corpus Juris Secundum as cited in R.S. Iron Industries Pvt Ltd v Calcutta Pinkjra- pole Society, AIR 2013 Cal 94, para 12]. " 13. Counsel for the Appellant is right in his submission that assent can either be in writing or there can be implied assent also. The present is a case where there is no claim of any written permission by the NOIDA for continuance of possession of the lease. The present is a case where NOIDA, after coming to know about the CIRP, has filed the IA No.1592 of 2019 in the CIRP of the Corporat....
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....it is obvious that mere continuance of possession after the expiry or determination of his lease would not entitle the tenant to claim a tenancy by holding over. Mere continuance of possession without more would not be sufficient for the purpose. There must also be the landlord's assent to such possession by acceptance of rent or otherwise. Acceptance of rent, unless explained on any other hypothesis, would be evidence of such assent, but it is not the only relevant evidence on the point and such evidence may be furnished otherwise also, that is, by other circumstances. What has to be proved is assent of the landlord. In the absence of an agreement to the contrary, the tenant's continuance of possession after the termination of the lease, coupled with the landlord's assent, would constitute a tenancy by holding over and the lease would be renewed from year to year or from month to month, according to the purpose of the tenancy under section 106 of the Transfer of Property Act. The landlord's assent again may be express or implied and even when there is no direct evidence, it may be inferred from circumstances. The length of the tenant's possession may have this ....
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.... submitted that in the Application under the RTI several questions were asked with regard to Group Housing Plot SC-01/D-1, Sector 79, NOIDA. In Reply to which although outstanding amount against the Plot was mentioned as Rs.50,52,06,651/- till 05.07.2017, but no information was provided that allotment of Plot has already been cancelled by the NOIDA Authority on 13.08.2015, which indicate that Plot was not cancelled by that time. 17. Learned Counsel for the Appellant has further relied on Notice dated 17.03.2023 issued by NOIDA to M/s. Three Seas Garden Developers Private Ltd., which Notice was also endorsed to Corporate Debtor, asking to show cause as to why Order of cancellation be not issued. Learned Counsel again submit that these indicates that there was no information regarding cancellation of Plot available in public domain. 18. The submission which has been pressed by the Counsel for the Appellant is right of holding over under Section 116 of the Transfer of Property Act, 1882. Insofar as cancellation of the Plot is concerned, after the cancellation dated 13.08.2015, the Corporate Debtor has submitted an Application on 14.06.2016 to the NOIDA Authority praying for restorat....
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....om the last Order dated 09.09.2020, a specific direction was given to the Noida Authority to place on record the decision of the Noida Authority on the representation of the Corporate Debtor dated 14.06.2016. However, it has been brought to our notice by the Counsel for the Noida Authority that the Noida Authority has not taken any decision on the said representation. It is worthwhile to mention that under consideration is a Resolution Plan that has been moved by an Association of allottees/Home Buyers of the Corporate Debtor Company, M/s. Kindle Developers Pvt. Ltd. But the land allotted by the Noida Authority was cancelled on 13.08.2015 due to non-payment of dues. In this circumstances, it is deemed fit to direct the Noida Authority to take a decision on the said Representation dated 14.06.2016 by giving due opportunity of hearing to the Resolution Professional for M/s. Kindle Developers Pvt. Ltd., who is managing the CIR Process of the CD and the Resolution Applicant, who has proposed a Resolution Plan for revival of the Company and place the decision so taken before this Authority within 4 weeks of this Order. List the matter on 20th November, 2020." 21. It is undisput....
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....he submissions made on the strength of Section 116 of the Transfer of Property Act, 1882. The Hon'ble Supreme Court in the said Judgment has held that after expiry of the lease status of Lessee will be that of tenant of sufferance and not of tenant holding over. In the Judgment of the Hon'ble Supreme Court, it was reiterated that it is only ascent of the landlord to the continuance of possession after determination of the tenancy will create new tenancy. In Paragraph 29 & Paragraph 30 of the Judgment following was laid down: "29. The defendant was inducted as a lessee for a period of 20 years. The lease period expired on 23-9- 1974. Even if the lessee had not paid rent, the status of the lessee would not change during the continuation of the period of lease. The lessor had a right to seek possession in terms of Clause 9 of the lease deed. The mere fact that the lessor had not chosen to exercise that right will not foreclose the rights of the lessor as owner of the property leased. After the expiry of lease period, and in the absence of payment of rent by the lessee, the status of the lessee will be that of tenant at sufferance and not a tenant holding over. Section 116 of the TP ....
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....ly or impliedly assented to the continuance of Corporate Debtor in possession. The above submission which was raised by the Adjudicating Authority was noticed and repelled by Adjudicating Authority in Paragraph 23 of the Order, which Para 23 is as follows: "23. As regards the contention of the Respondent/RP that Noida Authority did not take back possession of the plot in question from the Corporate Debtor after 30 days of the cancellation, Ld. Counsel for the Applicant/Noida Authority, during the hearing, referred to the last paragraph of the cancellation letter dated 13.08.2015 by which the Corporate Debtor viz., M/s Kindle Developers Pvt. Ltd. was asked to hand over the possession of the land to the concerned Project Engineer of Noida and not the vice versa. Moreover, even if we consider the issue in the context of the Limitation Act 1963, the Limitation for obtaining possession of immovable property is 12 years, and the limitation for the Government is 30 years by virtue of Article 112 of the Limitation Act, 1963. Hence, in our considered view, the Noida Authority is still eligible to take over the possession of the plot in question that was cancelled by them on 13.08.2015." ....
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....In view of the aforesaid discussions, we are of the view that on the ground that Application for renewal has been filed by the Corporate Debtor, the leases of the aforesaid Tea Garden shall not be treated as deemed to be renewed and leases of the aforesaid Tea Gardens shall be treated to have expired before commencement of the CIRP. In view of the above, we answered Question No. 2 in following manner: "The leases of Tea Gardens whose period of Lease have come to an end before commencement of the CIRP, there shall be no automatic or deemed renewal of the leases even though Applications have been filed for renewal of the leases and no decision was communicated by the State." 29. Thus, in the present case, the mere fact that after cancellation of the lease, Corporate Debtor has made a request for restoration of lease, shall has no effect on the termination of the lease which had already been accomplished by letter dated 13.08.2015. We, thus are satisfied that the Corporate Debtor cannot claim any right within meaning of Section 116 of Transfer of Property Act, 1882 as a tenant holding over. 30. It is also relevant to notice that Resolution Professional (`RP') of the Corporate De....
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.... whereas the same was cancelled by Noida as back as on 13.08.2015. Even otherwise, the fact of RERA registration of the project ipso facto does not establish that the lease of Plot No. SC-01/D-1, Sector 79 Noida, which was cancelled by Noida Authority vide letter dated 13.08.2015, was subsisting or stood revived. Hence, this plea made by the Respondent/RP does not hold water, rather it is an attempt by the RP to justify the wrong/fraudulent action of the ex-management of the Corporate Debtor. 28. As regards the submission of RP relating to the subsistence of the lease in terms of Section 116 of the Transfer of Property Act (TOPA) 1882 even after the termination of the lease deed, the Applicant/ Noida Authority submitted that it is a disputed fact, which can only be gone into by the Court of Competent Jurisdiction. Further, the Applicant/Noida Authority argued that the lease deed of the project land was terminated before the initiation of CIRP, and the land got vested with the Noida Authority. Ld. Counsel for the Noida Authority further argued that the cancellation of the lease deed was in no way related or connected to the insolvency of the CD. In this context, the applicant reli....
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....letter dated 10.11.2020, the lease deed of the said plot cannot be deemed to have continued. Moreover, despite ample opportunities in the interest of justice granted by this Adjudicating Authority to the Respondent/RP, CoC (mainly comprising of Home Buyers), and SRA, they failed to arrive at any settlement qua the Noida Authority regarding the restoration of the Lease deed of the said "project land" in the name of the CD. Hence, in compliance with the directions of the Hon'ble NCLAT passed in Company Appeal (AT) (Insolvency) No. 605 of 2020 vide order dated 27.07.2020, we have no other option but to conclude that there is nothing placed or produced on record by the Respondent/RP, COC, SRA, or anyone else, which could depict that the lease of project plot is in existence post- 13.08.2015. Even otherwise, though the RP is claiming to have possession over the cancelled plot of the project, he has failed to bring any evidence on record in support of payment of any land dues or lease rentals of the Project Plot to the NOIDA Authority. In other words, the lease deed or allotment of the "Project Plot No. GH-SC- 01/D-1, Sector 79 Noida" stood cancelled with effect from 13.08.2015. In view ....
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.... was cancelled by Noida authority on 13.08.2015. Nothing has been placed on record to show that the lease deed of the said plot was restored to the Corporate Debtor except that an application had been filed by the suspended management after a gap of 305 days before the Noida authority seeking restoration. It is also an undisputed fact that Noida authority had not taken any decision on the said representation and that a decision was taken thereon by the Noida authority on the directions of the Adjudicating Authority which was passed on 12.10.2020. The Noida authority on 10.11.2020 had sent a detailed reply stating that the restoration application is rejected in view of violation of the terms of the lease deed dated 24.10.2011. In the present case, the Adjudicating Authority has correctly held that since the lease deed had been cancelled much before the commencement of the CIRP, the Corporate Debtor had lost the right to possess the subject plot before the initiation of CIRP. Since the subject plot ceased to be an asset of the Corporate Debtor with effect from 13.08.2015, the provision of moratorium in terms of Section 14 of the IBC will not get attracted in the present case. 13. T....
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....e the Respondent Company and/or the Respondents have no good title over the land on which the constructions/development work has taken place. A copy of the cancellation notification dated 13.08.2015 is annexed as Annexure 7." 15. Despite knowing that the lease had been cancelled by the Noida authority, merely on the pretext that the cancellation of the lease was not followed up with other measures by the Noida authority, the RP should not have treated the subject plot to be in the possession of the suspended management. Given this set of facts, RP should have been more circumspect and should not have agreed to make the housing project of suspended management on the subject plot a part of the resolution plan. Instead, the RP continued to take all actions including preparation of the IM projecting the cancelled plot as the asset of the Corporate Debtor and getting approval of the resolution plan from the COC as if the said plot existed with the corporate debtor. Such a resolution plan which is premised on the basis that the land belonged to the Corporate Debtor could not have been considered by the COC. In the adjudication of I.A. No. 1592 of 2019, the Adjudicating Authority on 20.....
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....he role of the RP. We find no merit in the appeal. The appeal is accordingly dismissed. No order as to costs." 34. Learned Counsel for the Appellant tried to distinguish the Judgment on the ground that Appellants being not party in the Appeal which was filed by the RP, the said Judgment does not operate as res judicata. It is relevant to notice that Judgment dated 01.05.2024 passed by this Tribunal was delivered in an Appeal which was filed by the RP challenging the findings by the Adjudicating Authority in the Impugned Order dated 11.01.2024. The said findings by this Tribunal in its Judgment dated 01.05.2024 has been rendered in the same CIRP process and with reference to same Impugned Order, which is now sought to be challenged by the Appellant in this Appeal. The findings rendered by this Tribunal in Judgment dated 01.05.2024 are relevant and can very well be relied by this Tribunal in support of the submissions, which have been advanced by the Learned Counsel for the NOIDA. This Tribunal in its Judgment dated 06.05.2024 have taken a view that Corporate Debtor has no right to the Plot in question which was cancelled on 13.08.2015. RP acted wrongfully in proceeding with the CIR....
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....cular site or plot of land shall be used, namely for industrial or commercial or residential purpose or any other specified purpose in such area." 39. As per Section 6(1) the object of the authority is to secure the Plan development of the Industrial Development Area. NOIDA has acquired the land for the above purpose and leased out to various entities for planned development. 40. Coming to the facts of the present case, the Lease Deed dated 24.10.2011 was entered between NOIDA on the one part and M/s. Kindle Developers Private Limited (Lessee) as other part. Lease was taken for development of sports city for recreational, commercial and residential including group housing. In the Lease Deed dated 24.10.2011, following has been stated: "...AND WHEREAS the Lessor has agreed to demise and the Lessee has agreed to take on lease the said plot for development of Sports City for recreational, commercial and residential including group housing, subject to the condition that the activities considered to be a public nuisance/hazardous shall not be carried out. Any activity, which creates noise pollution or air pollution or water/chemical pollution, shall not be allowed. All the allowed a....
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....(s) for slow progress of work at Site, if yes please provide a certified true copy of action taken by Noida Authority for such complaints. 5. Has Noida Authority has given any legal notice to the builder for cancellation of plot since January 2012 till date i.e. 05.07.2017? If yes, Certified copy of such Notice and copy of all actions taken up by Noida authority after issuance of legal notice." 43. Answer given by NOIDA on 02.08.2017, with respect to Question No. 4 A and B, is that in file there is no such information available and with regard to Question No. 5, it was stated that the information shall be with Group Housing and Law Department. 44. Homebuyers by their representation has brought into the notice of the NOIDA, the lapse on the part of Lessee. 45. It was after Notice was issued by the Adjudicating Authority on 08.11.2019 to the NOIDA. NOIDA filed the I.A. being I.A. No. 1592/2019, seeking exclusion of the Plot from CIRP of the Corporate Debtor. 46. Hon'ble Supreme Court had occasion to consider the role of Development Authorities, including NOIDA in respect to the Real Estate Projects with regard to protection of interest of the homebuyers. In `Bikram Chatterjee &....
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....cause possession thereof to be delivered to him and may for that purpose use or cause to be used, such force as may be necessary." 47. In the above case, Hon'ble Supreme Court observed that Authorities have failed to perform the Statutory Duties cast upon them to take prompt action. In Paragraphs 98, 99 & 100 following has been observed: "98. The Authorities have failed to take action under the aforesaid provisions. The Authorities have also failed to perform the statutory duty cast upon them to take prompt action. Merely filing of the case against Unitech Builders by way of petition in this Court did not furnish any grounds to the Authorities to remain silent spectator on the perpetration of fraud committed on the homebuyers by Amrapali Group of Companies. Public trust doctrine requires an affirmative action, which was envisaged not only statutorily but under the Scheme also. They were required to ensure that projects were completed within the stipulated period, otherwise, the very purpose of the grant would stand frustrated and colossal loss of public money. Amrapali Group did not pay even the amount due to be paid to the landowners on the part of land acquisition, it did not ....
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....y of the homebuyers in connivance with the Authorities and bankers and they are left without dream homes. If that is a factual scenario, no court can permit such fraud to be perpetrated. Since "fraud vitiates", the bounden duty of the court is to act as parens patriae not only to save the homebuyers but also to ensure that they are not cheated. 100. Authorities and bankers have not acted in furtherance of public interest and failed to perform duties enjoined upon them. The kind of fraud that has taken place not only in Amrapali Group of Companies but at large as more than 70% of the various projects have not come up, is alarming to the courts to take affirmative steps with the direction to prevent such frauds, restore the money of homebuyers and to punish incumbents responsible for such act. At the same time, to ensure that buildings are completed. It cannot be denied that lifetime savings of homebuyers have been invested for purchase of a house with the faith and trust they have given the money. The scheme of the Government is to promote the real estate for which land had been acquired, even poor farmers have not been paid the compensation. The land allotted at throwaway prices ....
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....he light of Pioneer Judgment. We are constrained to observe that despite knowing that the lease had been cancelled by Noida Authority, the Directors/Shareholder continued to accumulate money thereafter by duping several investors who nurtured the fond hope of getting a roof over their head and invested their lifetime's money. The Corporate Debtor knew that no project could be implemented or flats constructed and delivered when there was no land. This is considered cheating the unsuspecting allottees. The R.P is directed to look into this matter and file a proper complaint with the EOW Cell of the Delhi Police. In the meantime the Directors of the corporate debtor are directed to file an affidavit of their personal assets including all their movable and immovable assets. We may also hasten to observe that given the facts of the case, the CD's prayer for considering the admission of the CIR Process de novo is a blatant instance of wanting to perpetuate their criminal intent of cheating people. We may be persuaded to consider whether the observations of the Hon'ble Apex Court would be applicable to their case for hearing the petition De novo provided the CD is able to show t....
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....ppropriate direction. 53. We have noticed above that the Resolution Plan of the Corporate Debtor was approved by the CoC on 04.12.2019 and I.A. was also filed by the RP under Section 30(6) for approval of the Plan being I.A. No. 1664/2019. In view of the Impugned Order passed by the Adjudicating Authority on 11.01.2024, the very substratum of the Resolution Plan being knocked out, the Application I.A. 1664/2019 has become infructuous and cannot be proceeded any further. We, thus are of the view that I.A. 1664/2019 also needs to be dismissed in consequence of the Order dated 11.01.2024. 54. The CIRP against the Corporate Debtor has commenced on 08.03.2018 and more than 6 Years have elapsed the period of 330 days which is permissible period for CIRP having already come to an end the present is the case to exercise the jurisdiction under Section 33(1) directing for Liquidation of the Corporate Debtor. As observed above, NOIDA Authority which is obliged to monitor the implementation of the Project has to take steps to protect the interest of the homebuyers also. Subject to Orders passed by the High Court in pending Writ Petition, as noted above NOIDA Authority can take steps for comp....