TaxTMI 
TaxTMI 
2024 (9) TMI 1093
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....cates for R - 2. Mr. Rachit Mittal , 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....
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.... that it shall accord consideration to the matter in 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 C....
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....e IRP was entitled to take control of the assets in question 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....
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....rights. It is submitted that the NOIDA was duty bound for implementation 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 Appellan....
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....refore, you are requested to kindly hand over the possession to the concern Project Engineer of NOIDA within 30 days from the date of issue of 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 n....
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....on Plan. Ordered accordingly." 10. Submission which has been pressed by the Counsel for the CoC is that the Corporate Debtor having continued in possession even after cancellation of the Lease Deed, the Corporate 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 i....
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....and by context, "acceptance." Agreement or approval; compliance, approval of something done, or a declaration of willingness to do something in compliance with a request; concurrence in, or with; consent; silent acquiescence, "Assent" implies knowledge of 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 ....
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....therwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106". 9. From the express terms of the section, 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 ....
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.... 893, at page 898]." 16. Learned Counsel for the Committee of Creditors (`CoC') to support his submission that Corporate Debtor was a tenant holding over has relied on an Application given under the Right to Information Act (`RTI') by one of the homebuyers and the Reply given by NOIDA dated 02.08.2017. It is 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 press....
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....ed 14.06.2016 submitted by the Corporate Debtor for restoration of the Plot. The Order dated 12.10.2020 has been brought on the record in Comp. App. (AT) (Ins.) No. 506/2024. The Order dated 12.10.2020 in I.A. No. 1592/2019 is as follows: "IA/1592/2019: Counsels for the Applicant/Noida Authority, Resolution Professional, Resolution Applicant and the CoC are present. As seen from 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 ....
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.... Debtor in possession". The right of the Corporate Debtor having come to an end after cancellation of the Plot, it cannot claim any rights nor it can claim itself to be a tenant holding over. 25. We may refer to the Judgment of the Hon'ble Supreme Court in the matter of `Nand Ram (Dead) through Legal Representatives' Vs. `Jagdish Prasad through Legal Representative' reported in (2020) 9 SCC 393, in which case Hon'ble Supreme Court came to consider the 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 con....
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....l create a new tenancy. What the section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise." 26. As observed above, there is nothing on record to indicate that NOIDA at any point of time, expressly 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 c....
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....tate of West Bengal either accepting or rejecting the application?" 28. This Tribunal after answering the aforesaid question held that on the ground that Application for renewal of lease have been filed by the Corporate Debtor Leases of Tea Green shall not be treated as deemed to be renewed and Leases of aforesaid Tea Garden shall be treated to have expired before commencement of the Corporate Insolvency Resolution Process (`CIRP'). Answering Question No. 2, following was held in Paragraph 66 : "66. 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 communicate....
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....nd wrong affidavit was given to U.P. RERA for getting the project registered, which reads as under: "I. Kindle Developers Pvt. Ltd. have/has legal title to the land on which the development of the proposed project is to be carried out.'" Further, the RP has himself mentioned in that the Registration with U.P. RERA was done without the intimation to the applicant i.e., Noida Authority". Thus, what emerges is that the CD/its promoters got the RERA registration of the project done on 15.08.2017 by falsely claiming the legal title over the land 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....
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....(b) nor there is any written permission by the Noida Authority for restoration or continuation of the lease deed of the said plot; and (c) nor the issue about the deemed continuation of the Lease deed had arisen out of the Insolvency Proceedings, hence Section 116 of TOPA 1882 does not help the case of the Respondent/RP. 29. In a nutshell, as the Lease deed of the "project land" was cancelled by the Applicant/Noida Authority vide letter dated 13.08.2015 and after the indulgence of this Tribunal, the Representation of the CD dated 14.06.2016 was also considered at the level of CEO Noida and rejected vide their 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....
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....n Paras 28 & 30 in Impugned Order dated 11.01.2024 passed by the Hon'ble National Company Law Tribunal, New Delhi Bench-II in I.A. No. 1592 of 2019; c) Pass any other Order which this Hon'ble Tribunal deems fit." 32. This Tribunal noticed the submission of the RP where the RP has defended his action to include the Plot in question in the CIRP of the Corporate Debtor. The submission advanced by the RP was rejected and this Tribunal in its Judgment dated 01.05.2024 in Paragraphs 12 to 15 returned following finding: "12. Coming to our analysis and findings, we are of the view that material on record clearly show that the lease of the subject plot 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 w....
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....r counter affidavit in CA No 479 of 2019 in the matter of G.S. Buildwell Pvt. Ltd. & Ors. had admitted that it was aware of the cancellation of the lease and this has been reflected in the impugned order as below: "22. It is submitted that the NOIDA Authority cancelled the allotment of the Land vide its notification dated 13.08.2015 for nonpayment of the amount due and in accordance with the provisions of the Lease Deed between NOIDA and the Corporate Debtor, the allotment was cancelled and the deposit amount was forfeited. It is submitted that as the land allotment has been cancelled, the Corporate Debtor lost its title as 'lessee' and the ensuing rights thereof and therefore 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 o....
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.... the insolvency resolution process marked by a nuanced equilibrium among creditor rights, stakeholder concerns, and procedural equity. In the present case, the Adjudicating Authority has rightly noted that the role of the RP has leaned towards justifying the wrongful action of the suspended management. We find no error in the findings arrived at by the Adjudicating Authority and affirm the observations made in respect of the unbecoming and unfair conduct of the RP. 18. In the result, given the sequence of events and the facts and circumstances of the case, for the reasons discussed above, we find no reasons to interfere with the impugned order in particular with regard to the observations made on the 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 b....
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....ions :-- (a) to acquire land in the industrial development area, by agreement or through proceedings under the Land Acquisition Act, 1894 for the purpose of this Act; (b) to prepare a plan for the development of the industrial development area; (c) to demarcate and develop sites for industrial, commercial and residential purposes according to the plan; (d) to provide infrastructure for industrial, commercial and residential purposes; (e) to provide amenities; (f) to allocate and transfer either by way of sale or lease or otherwise plots of land for industrial, commercial or residential purposes; (g) to regulate the erection of buildings and setting up of industries; and (h) to lay down the purpose for which a particular 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 f....
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....ted huge amount from the homebuyers. Appellants have also brought the Balance Sheets of the Corporate Debtor as on 31.03.2017. It is submitted that in the Balance Sheets it has been shown that Rs. 170.21 Crores/- have been received from the homebuyers. RTI Application which was filed by one of the homebuyers has already been noticed where several details were asked. In Question No. 4 & Question No. 5, following have been asked by the homebuyers : "4. Following details for Progress of Work at Site. A. Has Noida Authority done the Inspection of Site to access the progress of work at site Since January 2015 till date i.e. 05.07.2017, If yes, then please provide the date and details inspection, a certified true copy of site inspection report and findings. B. Has Noida Authority received any complaint form Buyer(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 ....
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....he provisions of the Uttar Pradesh Municipal Corporations Act, 1959 (Act 2 of 1959). 97. Section 14 provides for the resumption of any site or building and forfeiture of whole or any part of the money if any paid in respect thereof: "14. Forfeiture for breach of conditions of transfer.-(1) In the case of non-payment of consideration money or any instalment thereof on account of the transfer by the Authority of any site or building or in case of any breach of any condition of such transfer or breach of any rules or regulations made under this Act, the Chief Executive Officer may resume the site or building so transferred and may further forfeit the whole or any part of the money, if any paid in respect thereof. (2) Where the Chief Executive Officer orders resumption of any site or building under sub-section (1) the Collector may, on his requisition, 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 & 10....
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....e conscience of the law and nothing would be left for buyers not even a brick and the structures have come up by investing their money. Law never permits unjust gain based upon fraud. The principle "fraud vitiates" is clearly attracted and such a transaction would become unenforceable and would be against the public trust doctrine. Real estate business can never prosper in case of breach of trust, bankers, Authorities in connivance and the builders are permitted to take away the innocent homebuyers' money without being accountable to their action/inaction. From tomorrow huge money will be collected from homebuyers by the builder, banks would act in connivance and the Authorities sleep in slumber, permitting diversion of money of buyers/bankers, etc., and the homebuyers will be paying the dues of all concerned without investment of a penny by builder and rather they are diverting the money 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 homebu....
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....ral investors. Observation made in the Order dated 20.02.2020 is as follows : "CA. 1592/2019 has been filed by the Noida Authority. Ld. Counsel has apprised this Bench that the lease of the land, being the substratum of the Corporate Debtor's project has been cancelled vide this letter dated 31.03.2015 for want of deposit of necessary lease rent/charges in terms of the allotment. It is also pointed out that the resolution plan has been approved by the CoC on the basis that the land belongs to the Corporate Debtor. We fail to understand how a resolution plan can be considered by this bench when the lease of the allotted land has already been cancelled by Noida Authority way back in 2015 itself. Notwithstanding fact that a resolution plan cannot be considered for want of having a stratum, Ld. Counsel for the shareholders has submitted that the entire adjudication has to be considered de novo in the 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 ge....
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.... has now to be dealt by the NOIDA Authority, keeping in view the Order of the Hon'ble Allahabad High Court passed on 09.08.2023 in Writ Petition (Civil) No. 26400/2023, as extracted above. The Plot in question having been held to be excluded from assets of the Corporate Debtor. Now there is no impediment in the NOIDA taking possession of the assets along with the structure, standing thereof and take further steps in accordance with law. For taking steps, it is also necessary for the NOIDA Authority to take steps for early disposal of Writ Petition (Civil) No. 26400/2023, in which there is restraint Order that NOIDA till the next listing shall not create third-party interest. 52. Be that as it may, it is open for the NOIDA Authority to bring all subsequent events including the CIRP of the Corporate Debtor and Orders passed by the Adjudicating Authority excluding in the Assets from the CIRP of the Corporate Debtor before the High Court and pray for appropriate 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. 166....