TaxTMI 
TaxTMI 
2023 (4) TMI 1454
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....es in Respondent No.1 Company i.e. Golden Jubilee Hotels Private Limited". 2. Heard Sri Vanaparthi Vaishali, learned counsel for the petitioner, learned Advocate General appearing for respondent Nos.1 and 4, Sri N. Narasimha Sharma, learned counsel representing Sri Y. Suryanarayana, learned counsel for respondent No. 2 and Sri Srinivas Chitturu, learned counsel appearing for respondent No.3. Brief facts of the case: 3. It is stated that petitioner is a Company registered under the Indian Companies Act, 1956, engaged in the business for executing, developing and maintaining projects in the Hospitality Sector. Respondent No.1 is the Department of Youth Advancement, Tourism & Culture, Government of Telangana, which is responsible for the advancement of Tourism and Culture in the State of Telangana. 3.1. The erstwhile Andhra Pradesh Government issued G.O.Ms.No.5, Youth Advancement, Culture & Tourism (T) Department dated 03.01.2001 constituting an Empowered Committee of Ministers comprising of (i) Minister for Finance, (ii) Minister for Home affairs and (iii) Minister for Tourism, to look after the proposals of Tourism Projects under privatization mode and placed before the ....
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....did not accompany the DPR. The same were called for on 21.08.2006. The plans submitted were again only conceptual proposing to construct upper basement, lower basement, ground floor, podium level floor, mezzanine floor, seven upper floors of hotel block, 10 upper floors of service apartment block with a total built up area of 33,7323 sft. The Government had issued G.O.Ms.No.6 YAT & C (PMU) Department dated 30.03.2007 awarding the project of establishing Five Star hotel to respondent No.2. It is further submitted that as the project site/land situated in Shilparamam premises belongs to Shilparamam Arts, Crafts and Culture Society set up by the Government under the administrative control of the YAT & C Department and the total land transferred to it and accordingly respondent No.1 issued G.O.Ms.No.8, YAT & C (PMU) Department dated 01.05.2007 directing the Special Officer of the Society to hand over the site to the Tourism Department stating that the revenues accrued out of the project would be shared as mutually agreed. Accordingly, the site was handed over to the respondent No. 4 on 04.05.2007. The Lease Agreement and Development & Management Agreements were executed by respondent N....
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.....06.2016 respondent No. 3 issued notice under Section 13 (2) of SARFAESI Act, 2002. 3.5. It is further stated that the promoters offered a One Time Settlement (for short 'OTS') to all the consortium of Banks, however respondent No.3 Bank filed petition under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for short 'IBC') and Corporate Insolvency Resolution Process(for short 'CIRP') was initiated against respondent No. 3 before National Company Law Tribunal, Hyderabad (for short 'NCLT') on 27.02.2018. Further, the management of respondent No.1 was handed over to the appointed Resolution Professional. A conditional resolution plan was submitted by one M/s. BREP Asia II Indian Holding Co. II (NQ) PTE LTD ('Blackstone') and approved by NCLT, Hyderabad on 07.02.2020, for change of control and restructuring of the company i.e., respondent No.2, with the consent of the respondent No.1 and as well as respondent No. 4. Therefore, Respondent No. 2 has filed an appeal before NCLAT(National Company Law Appellant Tribunal) against the order passed by NCLT on 07.02.2020. The NCLAT after considering the same, passed an interim order dated on 16.07.2020 as "In meantime, no party will ta....
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....tion, applicant giving consent to change in contract restructuring of GJHPL-respondent No. 2, would amount to gross violation of the constitutional mandate and termination in the matters of contract in the State. 4.3. He further contended that on 07.02.2020 NCLT has passed detailed order specifically holding that it has approved the Resolution Plan for GJHPL, the hotel project which is in the nature of build/operate/transfer/contract with right to develop and management for 33 years was awarded to the Consortium Lead by the petitioner, if information to be transferred to anyone, it can only be transferred to another Company flouted by the same Consortium and fulfilling the conditions of the RFP and the Act, 2001. He also contended that hotel project cannot be transferred to any entitled not selected through the process of competent bidding for the subject process. He further contended that the petitioner has driven its capability upon being selected as the 'Lead Developer' and a Five Star Hotel in the name of hotel 'Trident, Hyderabad' has been in commercial operation since September, 2013 which is already contributed to the physical and social infrastructure of the State as is ....
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....ovided that if the government land is not available, Apiic would acquire land for the project". 5.2. In Indra Kumar Patodia and Another (supra)the Hon'ble Supreme court held as follows: "12. The word "complaint" has been defined in Section 2(d) of the Code which reads thus: "Section 2. (d) 'complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report." Keeping the above definition in mind, let us see the scheme of the statute and the legislative intent in bringing the Act. 18. It is clear that the non obstante clause has to be given restricted meaning and when the section containing the said clause does not refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. In other words, there requires to be a determination as to which provision answers the description and which does not. While interpreting the non obstante clause, ....
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....another Magistrate under Section 192: Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not reexamine them." Mere presentation of the complaint is only the first step and no action can be taken unless the process of verification is complete and, thereafter, the Magistrate has to consider the statement on oath, that is, the verification statement under Section 200 and the statement of any witness, and the Magistrate has to decide whether there is sufficient ground to proceed. It is also relevant to note Section 203 of the Code which reads as follows: "Section 203. Dismissal of complaint.-If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing." It is also clear that a person could be called upon to answer a charge of false complai....
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....of the record." A perusal of the above shows that the legislature has made it clear that wherever it required a written document to be signed, it should be mentioned specifically in the section itself, which is missing both from Section 2(d) as well as Section 142". 5.3. In Municipal Corporation of Greater Mumbai (MCGM) (supra),the Hon'ble Supreme court held as follows: "42. Now, this Court proposes to deal with the contention that the provisions of the Code override all other laws and hence, that the resolution plan approved by NCLT acquires primacy over all other legal provisions. Facially, this argument appears merited. Section 238 enacts that: "238. Provisions of this Code to override other laws.- 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." 45. In Macquarie Bank Ltd. v. Shilpi Cable Technologies Ltd. [Macquarie Bank Ltd. v. Shilpi Cable Technologies Ltd., (2018) 2 SCC 674 : (2018) 2 SCC (Civ) 288], one of the issues was the interplay between Section 9 of the Code and provision....
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.... prescribed. This is the well-known rule in Taylor v. Taylor [Taylor v. Taylor, (1875) LR 1 Ch D 426], which has been repeatedly followed by this Court. Thus, in State of U.P. v. Singhara Singh [State of U.P. v. Singhara Singh, AIR 1964 SC 358 : (1964) 1 Cri LJ 263 (2)], this Court held : (AIR p. 361, para 8) '8. The rule adopted in Taylor v. Taylor [Taylor v. Taylor, (1875) LR 1 Ch D 426] Ch D at p. 431 is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. A Magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in Section 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of Section ....
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....any and he is not entitled to invoke the jurisdiction of this Court under Article 226 of Constitution of India and the writ filed by the petitioner is not maintainable under the law and the same is liable to be dismissed. The nature of dispute is purely a contractual dispute and the activity comes within the definition of 'Hospitality Sector' and the provisions of Section 24 (b) and Section 30 of the Act, 2001 are not applicable to the present case and the petitioner is not entitled the relief sought in the writ petition. 6.1. He further contended that as per the Request proposal of YAT & C (PMU) D in Clause 6.4, it clearly envisages that in the event of default of payment, the lender should have right to substitute the selected bidder, in consultation with YAT &C (PMU) D. The Bank has initiated the proceeding before NCLT invoking the provisions of 'IBC' and NCLT has approved the Resolution Plan and passed order on 07.02.2020. As the respondent No. 2 was already declared as NPA on 31.12.2015 and after considering the objections of the respective parties, respondent No. 2 further filed an appeal before NCLAT and the same is pending. He further contended that respondent No.2 commi....
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....n 24 (b) of the Act are not applicable to the present case. He also submits that similarly, in view of the contract executed in favour of respondent No.2, was already terminated by the respondent No.1, as such the provisions of the Act are not applicable. 10. Having considered the rival submissions made by the respective parties and upon perusal of the record, the following points would arise for consideration: 1. Whether the provisions of Section 24 (b) of Telangana Infrastructure Development Enabling Act, 2001 is applicable to the facts and circumstances of the present case?" 2. Whether the provisions of Section 238 of IBC,2016 have an overriding effect on Section 24(b) Telangana Infrastructure Development Enabling Act, 2001? 3. Whether the writ petition filed by the petitioner under Article 226 of Constitution of India is maintainable under law, when the matter is ceased by the competent Tribunal i.e. NCLAT? 4. Whether the petitioner is entitled for the relief sought in the writ petition? Point Nos.1 to 4 11. It is undisputed fact that erstwhile Government of Andhra Pradesh proposed to set up a Five Star Hotel Project in an extent of ....
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.... the consent of the respondent No.1 and as well as respondent No.4 for change of control and restructuring of the company i.e respondent No.2. Thereafter, Mr. Laxmi Narayana Sharma, who is suspended director of respondent No. 2 has filed an appeal before NCLAT against the order passed by NCLT dated 07.02.2020 and the Appellant Tribunal has passed interim order on 16.07.2020 stating that no party will take any precipitate coercive steps and the same is pending. He further contented that in spite of the existing orders passed by NCLAT, the petitioner has taken coercive steps and the same is illegal and against under the law. At that stage, petitioner Company submitted a letter on 25.09.2020 to the respondent No.1 requesting not to consider the request being made by the respondent No.2 or by way of Agent of respondent No.2 for replacing the petitioner as the Lead Developer in respondent No.2 Company. 11.2. Learned Advocate General and learned counsel appearing for the respondent Nos. 2 and 3 have rightly contended that the provisions of 24 (b) of the Act, 2001 is not applicable to the present case, on the ground that the Project will not come within the definition of the "Real esta....
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....ment having effect by virtue of any such law". 12. In Solidaire India Ltd., (supra)the Hon'ble Supreme Court held as follows: "8. The effect of this provision is that the said Act will have effect notwithstanding anything inconsistent therewith contained in any other law except to the provisions of the Foreign Exchange Regulation Act, 1973 and the Urban Land (Ceiling and Regulation) Act, 1976. A similar non obstante provision is contained in Section 13 of the Special Court Act which reads as follows: "13. Act to have overriding effect.-The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law, other than this Act, or in any decree or order of any court, tribunal or other authority." 9. It is clear that both these Acts are special Acts. This Court has laid down in no uncertain terms that in such an event it is the later Act which must prevail. The decisions cited in the above context are as follows: Maharashtra Tubes Ltd. v. State Industrial & Investment Corpn. of Maharashtra Ltd. [(1993) 2 SCC 144] ; Sarwan S....
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....ote is that the Preamble does not, in any manner, refer to liquidation, which is only availed of as a last resort if there is either no resolution plan or the resolution plans submitted are not up to the mark. Even in liquidation, the liquidator can sell the business of the corporate debtor as a going concern". 12.2. In Innoventive Industries Limited (supra) the Hon'ble Supreme Court held as follows: "13. One of the important objectives of the Code is to bring the insolvency law in India under a single unified umbrella with the object of speeding up of the insolvency process. As per the data available with the World Bank in 2016, insolvency resolution in India took 4.3 years on an average, which was much higher when compared with the United Kingdom (1 year), USA (1.5 years) and South Africa (2 years). The World Bank's Ease of Doing Business Index, 2015, ranked India as country number 135 out of 190 countries on the ease of resolving insolvency based on various indicia. 60. It is clear, therefore, that the earlier State law is repugnant to the later Parliamentary enactment as under the said State law, the State Government may take over the management of the ....
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.... 12.3. In K. Sashidhar (supra) the Hon'ble Supreme Court held as follows: "52. As aforesaid, upon receipt of a "rejected" resolution plan the adjudicating authority (NCLT) is not expected to do anything more; but is obligated to initiate liquidation process under Section 33(1) of the I&B Code. The legislature has not endowed the adjudicating authority (NCLT) with the jurisdiction or authority to analyse or evaluate the commercial decision of CoC much less to enquire into the justness of the rejection of the resolution plan by the dissenting financial creditors. From the legislative history and the background in which the I&B Code has been enacted, it is noticed that a completely new approach has been adopted for speeding up the recovery of the debt due from the defaulting companies. In the new approach, there is a calm period followed by a swift resolution process to be completed within 270 days (outer limit) failing which, initiation of liquidation process has been made inevitable and mandatory. In the earlier regime, the corporate debtor could indefinitely continue to enjoy the protection given under Section 22 of the Sick Industrial Companies Act, 1985 or under other s....