TaxTMI 
TaxTMI 
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2025 (9) TMI 1162
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....ngh, Ujwal Chaudhary, Tejasvi, Advocates for R1. Ms. Divya Gupta, Advocate for R2 and R6. Mr. Abhijeet Sinha Sr. Advocate,, Mr S. Mitra, Mr. Saikat Sarkar, Mr. Keshav Tibarewala, Advocates for R3. Mr. Sajeve Deora, Ms. Tanvi Luhariwala, Advocate for R-5 Ms Tanvi, Vikash Singh, Ujwal Chaudhary, Tejasvi, Advocates for R1. Mr Palzer Moktan for R4. Ms Divya Gupta, Advocate R2 and R6. JUDGMENT ASHOK BHUSHAN, J. These Appeal(s) have been filed challenging the same order dated 14.03.2024 passed by National Company Law Tribunal, Division Bench, Court No.II, Kolkata in IA (IB) No.1345/KB/2022, Intervention Petition (IBC) No.21/KB/2022; Intervention Petition (IBC) No.15/KB/2022; Intervention Petition (IBC) No.23/KB/2022; and I.A. (IB) No.923/KB/2022 in C.P. (IB) No.1782/KB/2019. The Adjudicating Authority disposed of all IAs by the said order. Aggrieved by which order these two sets of Appeal(s), one by Committee of Creditors of Jupitar Spun Pipes and Casting Pvt. Ltd. and other by Resolution Professional ("RP") of Jupitar Spun Pipes and Casting Pvt. Ltd. of the CD have been filed. 2. Notices were issued in the Appeal(s) on 17.05.2024, on which date an interim order was also passed....
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....very Tribunal, Kolkata for its dues. (viii) In the year 2000, the BSIDC attempted to lease out the unit and/ or factory in an attempt to clear the liabilities of IRBI and a lease was proposed to a Company - Machineries and Allied Products Pvt. Ltd. ("MAPPL") at an annual lease rent of Rs. 45.50 lakhs. MAPPL paid certain amount, but due to non- payment of full amount registered lease in favour of MAPL, could not be executed. (ix) In the year 2005, the BSIDC took fresh initiative to reopen the factory and approached the State of Bihar, who gave consent to run the unit on the lease. The BSIDC approached the Magadh. (x) The CD claims to have obtained lease of land admeasuring 344.915 acres together with plant and machinery on 24.09.2007 from BSIDC and Magadh on consideration of Rs. 16 crores with Rs. 1 lakh yearly lease rent. An amount of Rs. 10 lakhs advance lease rent was also claimed to be given. (xi) On the basis of the Lease Deed dated 24.09.2007, the CD approached the State Bank of India ("SBI"), Kolkata. The SBI by order dated 24.12.2007 sanctioned credit facilities to the CD. On 04.01.2008, the CD claimed to have executed a Mortgage Deed of the entire land and assets in....
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....)/1782/KB/2019. (xvi) In the CIRP of the CD, Form-G was published and one Agile Metaliks Pvt. Ltd. ("Agile") submitted its Resolution Plan, which was approved by 100% vote share of the CoC on 04.08.2022. In the CoC, the SBI has 96% vote share. On 05.08.2022, BSIDC filed IVNP (IB) No.15/KB/2022 seeking a declaration that BSIDC is the owner of the asset and RP be directed not to take any steps in connection with the property. The RP filed an IA (IB)923/KB/2022 for approval of the Resolution Plan. Magadh filed an IA(IB)1345/KB/2022 seeking declaration that Magadh is the owner of the assets. Another IVNP.(IB) No.23/KB/2022 was filed by Shanti Ranjan Paul on 09.11.2022. Another IVNP.(IB)No.21/KB/2022 was also filed by Agile seeking to intervene in Plan approval application and in both the applications filed by BSIDC and Magadh. (xvii) The Adjudicating Authority by the impugned order held that Lease Deed dated 24.09.2007 claimed by the CD, does not inspire confidence. The Lease Deed casts a doubt, whether it is forged or fabricated document. The Adjudicating Authority held that issue relating to forged and fabrication, cannot be decided in summary proceedings. It was further observed....
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....Deed has drawn adverse presumption against the CD and now Original Lease Deed has been taken on record by this Tribunal, presumption of execution and validity of Lease Deed has to be drawn. It is submitted that even though Conveyance Deed in favour of BSIDC was executed in the year 2009, which was registered on 06.09.2011, but the BSIDC being successful auction purchaser, it had right to lease out the assets, which it did to the CD on 24.09.2007. On 05.03.2012, the BSIDC has conveyed the assets to Magadh and stamp duty for registration of Deed on 05.03.2012 was paid by the CD, which is reflected in the Financial Statement of the CD. It is submitted that the CD having committed the default, the SBI has initiated proceeding to take possession of the assets of the CD under the SARFAESI Act. It is submitted that challenging the order passed by Deputy Commissioner dated 20.02.2017, Magadh filed a Writ Petition in Jharkhand High Court, which was dismissed on 11.06.2019, leaving it open to Magadh to initiate any action. However, till date, no action has been initiated by the Magadh. It is submitted that Adjudicating Authority, who has no jurisdiction to entertain any argument of fraud or ....
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....der be set aside. 7. Shri Ramji Srinivasan, learned Senior Counsel appearing for the RP submits that the RP relying on materials on record has rightly shown the assets of the CD, in which CD has leasehold rights vide Lease Deed dated 24.09.2007. It is submitted that the CoC having filed an application IA No.3003-3005 of 2025 in the Appeal seeking permission to produce original Lease Deed, which has been allowed vide order dated 08.08.2025, the very basis of the impugned order passed by Adjudicating Authority that original Lease Deed has not been filed is knocked out. The registered document being on the record, presumption of its execution and enforceability has to be drawn. The RP has filed an RTI application on 17.10.2022 before the Sub-Registrar, Kodarma, who has replied vide letter dated 17.11.2022 that there is entry in the Register of execution of Lease Deed, but the volume containing the original Lease Deed is missing, for which steps for lodging FIR is being taken. The land was always in possession of the CD and Magadh has leased the land to the CD on 24.09.2007 and CD has started manufacturing on the land and has obtained various licenses for operation. The Adjudicating A....
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.... A.K. Srivastava and Shri B.B. Lal to execute the Deed on behalf of the BSIDC, whereas Deed dated 24.09.2007 is claimed to be executed by one Shri Dashrath Prasad, claiming to be Special Assistant, who is Typist in the BSIDC. Thus, the person who is claimed to have executed the Deed on behalf of the BSIDC is not entitled to execute as per the statements made in the Deed itself. Further the Lease Deed mentions that upfront payment of Rs. 16 crores and advance lease rent of Rs. 10 lakhs have been paid by different cheques, but no amount was ever received towards the upfront payment of Rs. 16 crores and lease rent by the BSIDC, nor any materials have been placed by the CD or RP to prove any payment to the BSIDC. It was all manipulation of Managing Director of the CD - Nabarun Bhattacharjee, who is claiming a forged Deed for leasehold rights, has duped the officials of SBI by obtaining huge amount on a Deed which is forged. It is submitted that BSIDC has earlier entered into an Agreement with one Machineries and Allied Products Pvt. Ltd. to lease out the land @ Rs. 45.50 lakhs and although certain amount was paid by MAPPL, but the full amount was not paid, due to which the registered L....
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....Lal in the year 2007 is missing and process of lodging FIR is on. The alleged Lease Deed dated 24.09.2007 having been executed by unauthorized person, is null, void and ab-initio and cannot confer any right to the CD. It is submitted that Magadh has after coming to know about the validity of Lease Deed dated 24.09.2007 has taken both civil and criminal action. The Magadh has registered the crime being FIR No.276 of 2021 with Jaynagar Police Station District Kodarma, Jharkhand against the officials of the CD and the SBI. Magadh has also filed an Appeal against the order dated 03.11.2021 in this Appellate Tribunal being Company Appeal (AT) (Ins.) No.45 of 2022, which was permitted to be withdrawn with liberty to Magadh to file an application in the proceedings initiated by the SBI. The RP has neither informed the real owner of the asset, nor had verified from the real owners about the rights of the CD. It was Magadh, who was throughout in possession of the asset and when possession was taken by the SBI officials at that time employees of the Magadh were very well there in the factory premises. 10. Shri Sajeve Deora, learned Counsel appearing for Shri Shanti Ranjan Paul, who is Respo....
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....ARFAESI Act. It is submitted that there were three Companies of the CD, i.e. Jupiter Ispat Pvt. Ltd.; Jupiter Coke & Energy Pvt. Ltd. against whom the SBI has also filed application under Section 7, which were dismissed as barred by limitation, whereas Section 7 application against the CD, which was third Company, was admitted. It is submitted that infact BSIDC has executed Lease Deed dated 12.09.2006 in favour of Machineries and Allied Products Pvt. Ltd., who was selected in an auction conducted by BSIDC. On 12.09.2006, the CD also claiming a Lease Deed in its favour by BSIDC and mortgage, which is another example of forgery and fraud. The Balance Sheet of the Magadh contains the reference of lease to MAPPL on 12.09.2006. The amount of Rs. 1,18,75,860/- which has been claimed to be paid by the CD to Magadh for registration of document on 05.03.2012 is investment by CD in the Magadh and cannot give any right to the CD. It is submitted that the SBI, who has 96% of vote share in the CoC, did not conduct any proper verification of the Lease Deed dated 24.09.2007 and at no point of time the SBI and its officials enquired from the owner of the assets, i.e. BSIDC and Magadh. The SBI has ....
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....ellant will pay a sum of rupees one lakh towards the expenses incurred by the Official Liquidator. The rest of the expenses shall be borne and paid by the State Bank of India and the Industrial Development Bank of India pro rata. We reserve liberty to the parties to apply to the Calcutta High Court for necessary orders in respect of lot No. 4. The appeal is allowed in terms of this Order. There will be no order as to costs. We cannot, however, part with this case without saying that we are unable to understand that the learned single Judge of the High Court should have felt driven to confess to a feeling of "some difficulty in properly appreciating" the order passed by this Court. There was no occasion for the High Court to consider the context or necessity of the order passed by us since, by express language, all that we had asked the High Court to do was to hold the sale and send a report to us as to the bids received by it." 13. There is also material on record that Official Liquidator between 21.03.1983 to 23.03.1983 through his authorized representative visited the premises and handed over the possession to the BSIDC of the land, asset and machinery. However, Deed of Co....
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....e BSIDC successful purchaser of the land, assets and machinery. The amount deposited in the Supreme Court Registry was transferred to Official Liquidator for distribution. (iii) The Official Liquidator handed over possession of the land, building, plant and machinery to BSIDC between 21.03.1983 and 23.03.1983. (iv) The BSIDC along with private co-promoter incorporated Magadh Spun Pipe Ltd. on 21.01.1985. The BSIDC entrusted the land, building, plant and machinery to Magadh, of which possession was obtained from Official Liquidator. The Magadh was put in possession. (v) The Official Liquidator executed the Conveyance Deed of the land, plant and machinery in favour of the BSIDC on 17.07.2009, which was registered on 06.09.2011. (vi) The BSIDC transferred all its share held in Magadh to CD in the year 2011 for the amount of Rs. 3.2 crores. (vii) On 05.03.2012, the BSIDC transferred its rights, title and interest of BSIDC on the said property to Magadh by Conveyance Deed dated 05.03.2012. (viii) The CD paid a stamp duty of Rs. 1,18,75,860/- for Conveyance Deed dated 05.03.2012, which was treated as investment in the Magadh by the CD. (ix) The Magadh, who had become absolu....
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....ding loan off Rs 1,07,00,000.00 was paid back to IRBI. As per Agreement Penal interest 9% has to be charged from the Lessee for default in payment of Lease Rent. The position of Penal Interest as at 31.03.2012 is as under- Rent Receivable (As per Agreement) Actual Rent Received Differences Interest Period Amount (Rs.) Period Amount (Rs.) Amount (Rs.) Period Amount (Rs.) 2006-07 2,275,000.00 2006-07 2006-07 10,700,000.00 1,516,000.00 2006-07 32,693.00 A 2,275,000.00 12,216,000.00 (9,941,999.00) 32,693.00 2007-08 4,550,000.00 2007-08 300,000.00 2007-08 112,382.00 B 4,550,000.00 300,000.00 4,250,000.00 112,382.00 2008-09 4,550,000.00 2008-09 200,000.00 2008-09 41,693.00 C 4,550,000.00 200,000.00 4,350,000.00 41,693.00 A+B+C 11,375,00.00 12,716,000.00 - 186,768.00 2009-10 4,550,000.00 2009-10 2,997,778.00 2009-10 103,646.00 D 4,550,000.00 2,997,778.00 1,552,222.00 103,646.00 A+B+C+D 16,925,000.00 15,713,778.00 - 290,414.00 2010-11 4,550,000.00 2010-11 2,100,000.00 2010-11 316,834.....
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....lows: "Coming to the factual aspects involved in this case, it is admitted case of the petitioner that fraud has been committed by mortgaging the property in question by virtue of fake Lease Deed, said to have been executed on 24.07.2007 and therefore, the same, according to the petitioner, is a forged one, but the aforesaid Lease Deed is forged or not, a declaration is required to be given by appreciating the various factual aspects which is not proper to be done by this Court by exercising the power conferred under Article 226 of the Constitution of India, considering the fact that the Forum is available under Section 17 of the Act, 2002 and therefore, keeping the various pronouncements into consideration, as referred hereinabove, it is the considered view of this Court that this case is not falling under the exception to interfere with the impugned order keeping the object and aim of the SARFAESI Act, 2002 and also taking into consideration the fact that the Forum is available where even at the stage of Section 14 of the Act, 2002, the issue can be raised. In view of the aforesaid factual aspects, as also based upon the judicial pronouncements as referred hereinabove, this C....
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....im. o. Since, the SRA was not a party to any of the applications filed by BSIDCL, MSPL or Shanti Ranjan Paul, on his prayer, the said applications were directed to be served upon the SRA by this Adjudicating Authority by an order dated 11.12.2022. p. The SRA was not aware of any dispute in respect of the Lease Deed or the Koderma Land as nothing was mentioned in the IM published by the RP about any pending litigation or dispute pertaining to the Lease Deed or the Koderma Land. q. The pleadings and documents relied upon by BSIDCL, MSPL and Shanti Ranjan Paul in their respective applications, however, indicate the following: i. The Lease Deed of Koderma Land dated 24th September, 2007 has been signed on behalf of BSIDCL by one "Dashrath Prasad and on behalf of MSPL by one "B.B. Lal". Whereas, the portal maintained by the Ministry of Corporate Affairs, shows that B.B. Lal was never a director of MSPL. ii. The Lease Deed itself indicates that authority to execute was granted to one "A K Srivastava" and one "B B Lal and therefore, Shri Dashrath Prasad was never authorized to execute the Lease Deed on behalf of the BSIDCL. iii. The said Dashrath Prasad had however, filed a se....
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....istered. e. It is averred by the Corporate Debtor that, in the year 2007, a Lease Deed was purportedly executed by BSIDCL in favour of Magadh Spun Pipe Limited whereas BSIDCL itself earned its title with, execution of Sale Deed Executed on 17.07.2009 by the Official Liquidator, and consequently, no absolute right in the property till 17.07.2009." 22. The Adjudicating Authority after noticing the clauses of the Deed dated 24.09.2007, it has observed that the original Lease Deed was not produced despite repeated opportunities granted. The Adjudicating Authority also held that there is no evidence of any payment of consideration of Rs. 16 crores upfront or yearly payment of lease rent, which is mentioned in the Lease Deed dated 24.09.2007. The said observation has been made in paragraph 16(l). The Adjudicating Authority in paragraph 16(m) observed that circumstances are galore that genuinity of the Lease Deed is suspicious. Following has been observed in paragraph 16 (l) and (m): "16.l. Although the recitals say that an upfront payment of Rs. 16 Crores was made etc., no evidence of such payment of 16 Crores upfront, or yearly payment of lease rent @ 1 Lakh per annum is produced b....
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....asset, which is claimed by the CD is asset of the CD, is a question, which needs to be considered and answered by the Adjudicating Authority and Adjudicating Authority has ample jurisdiction to decide the issue whether the particular asset, which is claimed by the CD as its asset can be treated to be asset of the CD or not. However, above is with a caveat that while deciding such question, the Adjudicating Authority cannot embark upon the issues pertaining to fraud and forgery. Any document, which is alleged to have been obtained by fraud or manipulation, becomes a voidable document, which requires a declaration to lose its enforceability. However, when a document can be established as void or unenforceable, it does not require any declaration. Thus, the limited jurisdiction, which can be exercised by the Adjudicating Authority is as to whether any document claimed in the proceedings is void or unenforceable. We have to consider the submissions of the parties in the light of the above principles, which are well established. 25. As noted above, the bone of contention between the parties are on the Lease Deed dated 24.09.2007, which is claimed to have been executed in favour of the ....
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.... No.3299 dated 8.09.2006, the government has no objection of BSIDC proposal sent to the Government pertaining to leasing out of MSPL to the Lessee herein. In the said meeting it was resolved that the assets and properties of MSPL, Hirodih be leased out to the Lessee as per approved draft. It was also resolved that Sri A.K. Srivastava, Chief Manager (Project) and Sri B.B. Lal, Chief Manager (H.O.) were authorised to execute, sign and register the Deed of Lease and hand over the assets and properties of MSPL to the Lessee herein." 28. The above indicate that two Officers namely - Shri A.K. Srivastava, Chief Manager (Project) and Shri B.B. Lal, Chief Manager (H.O) were authorised to execute the lease on behalf of BSIDC. Whereas lease dated 24.09.2007 on behalf of BSIDC is executed by one Dashrath Prasad, Special Assistant. It has been brought on record that Dashrath Prasad is only a Typist in the BSIDC. A declaration dated 13.02.2013 by Dashrath Prasad has been brought on record at Volume-5 of Common Convenience Compilation at page-913, which declaration was made by Dashrath Prasad, who was working as Typist. Thus, according to the statement in the Lease Deed itself, only authorised ....
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....ominee- Director. Shri B.B. Lal was not mentioned as Director. No material has been brought on record to show that B.B. Lal was Director of the Magadh and was entitled to execute the Lease Deed. Further, as noted above, as on 24.09.2007, it was BSIDC who was successful auction purchaser and who was handed over possession by the Official Liquidator in the year 1983 and the BSIDC has incorporated Magadh in the year 1985 and entrusted the assets to Magadh. Magadh had no rights of its own in the assets. Thus, we are satisfied that Lease Deed dated 24.09.2007 was not executed by authorised person on behalf of the BSIDC and the Magadh, hence, no right can be accrued to the CD on the basis of above document dated 24.09.2007. 31. Second issue is with regard to consideration. The Deed dated 24.09.2007 mentions about the upfront payment of Rs. 16 crores and at page-18 of the Deed under the heading 'Memo of Consideration', following has been stated: "MEMO OF CONSIDRATION RECEIVED of and from the within named Lessee the within mentioned sum of Rs. 16,00,00,000/- (Rupees Sixteen crores only) in full payment of within stated consideration money/ upfront payment as per Memo Below:- 1. Paid ....
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....ENGAL IN 700054 Nominee Reference num - Nominee Name Account Title JIPITER SPUN PIPES Person's Name Period 01-01-2000 TO 03-03-2022 Name Currency INDIAN RUPEES 33. The said Statement of Account indicates that there were no debit of any of the cheques referred to in the Deed dated 24.09.2007. The Adjudicating Authority in the impugned order has also noticed the submission of the SRA and has observed that RP, who was asked to disclose the financial records of the CD showing payment of consideration, but till date no document has been produced to that effect. Paragraphs 11(g) and 16(l) of the impugned order are as follows: "11.g. The RP was asked to disclose the financial records of the Corporate Debtor showing payment of such consideration. But till date no document have been produced to that effect. 16.l. Although the recitals say that an upfront payment of Rs. 16 Crores was made etc., no evidence of such payment of 16 Crores upfront, or yearly payment of lease rent @ 1 Lakh per annum is produced before us. Such being the position, the claim of JSPCPL that it became a Lessee in 2007 fails to inspire confidence." 34. Both the BSIDC and Magad have plead....