TaxTMI 
TaxTMI 
2025 (12) TMI 243
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.... AOR, Mr. Shashwat Singh, AOR, Mr. Shashwat Singh, AOR, Mr. R. Ilam Paridi, Adv., Mr. R. Vishnu Kumar, Adv., Mr. Saurav Beniwal, Adv., Mr. Aman Kumar, Adv., Mr. Sidhant Verma, Adv. JUDGMENT R. MAHADEVAN, J. Leave granted. 2. This Civil Appeal has been preferred against the final judgment and order dated 11.09.2024 passed by the High Court of Judicature at Bombay ["the High Court"] in Writ Petition No. 3893 of 2024. 3. Appellant No. 1 is the Corporate Debtor, which is presently undergoing Corporate Insolvency Resolution Process ["CIRP"] under the provisions of the Insolvency and Bankruptcy Code, 2016 ["IBC"]. Appellant No. 2, Mr. Harshad Shamkant Deshpande is the Resolution Professional appointed in respect of Appellant No. 1 in the said proceedings. Before the High Court, they were arrayed as Respondent Nos. 8 and 9 in the writ petition, out of which the present appeal arises. 4. Respondent No. 1, Kher Nagar Sukhsadan Co-operative Housing Society Ltd., preferred the aforesaid writ petition before the High Court against Respondent Nos. 2 to 7 and the present appellants, inter alia seeking the following reliefs: (a) issuance of a writ of mandamus directing ....
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....nicipal Corporation, after paying substantial amounts of Rs. 4,02,20,590/- and Rs. 52,70,836/- towards infrastructure charges. 6.2. However, redevelopment was stalled as the remaining 41 members failed to vacate the premises, and the Society continued to raise repeated allegations against Appellant No. 1. Appellant No. 1 also incurred expenses to carry out necessary repairs to the existing building, but the Society persisted in attributing the delays to the developer. 6.3. Disputes deepened, and in 2019, CIRP was initiated against Appellant No. 1, but was set aside on 12.06.2020. Subsequently, by order dated 06.12.2022, CIRP was admitted against Appellant No. 1 at the instance of State Bank of India, and Appellant No. 2 was appointed as the Resolution Professional. 6.4. In the meanwhile, Respondent No. 1 Society disregarding its own lapses and the statutory moratorium under Section 14 of the IBC, purported to terminate the Development Agreement with Appellant No. 1 and, by executing a fresh Development Agreement and Power of Attorney dated 10.12.2023, appointed Respondent No. 8 as a new developer. The Society also sought approvals from MHADA in favour of Respondent No. 8. ....
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....ed under Section 14 of the IBC. Instead of approaching the adjudicating authority under the Code or resolving contractual disputes through arbitration, Respondent No. 1 Society instituted a writ petition seeking a mandamus to facilitate permissions in favour of Respondent No. 8. The High Court failed to appreciate that no document evidencing the termination of the Development Agreement was ever placed on record. 7.3. The learned senior counsel further submitted that the impugned judgment disregards binding precedent that prohibits adjudication of contractual disputes under Article 226 of the Constitution in the face of an arbitration agreement and wrongly validates an alleged termination that was neither effected in law nor on fact. The judgment, in effect, deprives the corporate debtor of valuable development rights recognized as assets under Section 3(27) of the IBC, at a time when resolution plan proposing the revival of the subject project was actively under consideration by the Committee of Creditors. In these circumstances, the impugned judgment not only undermines the objective of the Code but also frustrates the statutory mandate of maximizing the value of assets during ....
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....tory status quo to ensure the unhindered conduct of the insolvency process. 7.7. The learned senior counsel also highlighted the substantial financial contributions made by Appellant No. 1 towards the project, including Rs.4,02,20,590/- paid to Respondent No. 3 on 14.09.2011 towards the purchase of additional buildable area of 2961.20 sq.m., whose current value is Rs.12,78,57,213/-, and Rs.52,70,936/- paid to Respondent No. 7 on 19.10.2011 towards infrastructure charges. Further, Appellant No. 1 paid Rs. 5,66,46,428/- towards compensation to allottees between 2008 and 2016, apart from rent payments made at their request even before the IOD was issued. The cumulative expenditure incurred by Appellant No. 1, valued at around Rs. 24 crores with interest, has a direct bearing on its rights and equities in the project. The failure of the High Court to consider these significant contributions renders the impugned judgment legally unsustainable. 7.8. It was further pointed out that there exists a valid and subsisting arbitration agreement between Appellant No. 1 and Respondent No. 1 Society, which has already been invoked. Despite having agreed to arbitration vide letter dated 06.11....
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....I clearance and persistent demands for further revision of the redevelopment proposal between 2014 and 2019. Accordingly, no blame can be fastened on Appellant No. 1 and the delay must be attributed solely to Respondent No. 1 Society. 7.11. The learned senior counsel further submitted that the High Court erred in holding that the Development Agreement dated 16.10.2005 and the Supplementary Agreement dated 09.04.2014 stood terminated pursuant to the Special General Body Meeting of Respondent No. 1 Society held on 09.06.2019. This finding is patently erroneous, as no resolution effecting such termination was passed in that meeting, and no document evidencing the same was produced before the High Court. Even the alleged notice dated 02.12.2019 merely threatened termination, while the alleged public notice dated 31.12.2019 was issued during the moratorium period and without following due process. It is well settled that a registered agreement cannot be terminated unilaterally; cancellation of such an instrument must be effected by a competent civil court. Any unilateral act purporting to terminate a registered agreement is legally untenable and without effect. 7.12. In conclusion....
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....respondences were addressed to Appellant No. 1 calling upon it to register the Supplementary Agreement, execute Permanent Alternate Accommodation Agreements, and commence construction, but no steps were taken. This compelled Respondent No. 1 Society to terminate the Development and Supplementary Agreements by a resolution dated 09.06.2019. The said decision was communicated to Appellant No. 1 by notice dated 02.12.2019 and reiterated by reply dated 06.11.2021. Consequently, a public notice confirming termination was issued on 31.12.2019. 8.2. The learned senior counsel further submitted that the first CIRP against Appellant No. 1 was initiated on 14.11.2019, but was subsequently vacated on 12.06.2020 after settlement. Despite this, Appellant No. 1 took no action to restart the project. Thereafter, arbitration was invoked by Appellant No. 1 on 28.10.2021, admitting termination. In such circumstances, Respondent No. 1 appointed Respondent No. 8 as the new developer on 07.11.2021, and MHADA, by letter dated 18.11.2021, permitted redevelopment through Respondent No. 8. 8.3. It was submitted that the second CIRP was initiated against Appellant No. 1 only on 06.12.2022 at the insta....
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....ther (2020) 13 SCC 208 to contend that the moratorium under section 14(1)(d) extends only to properties "occupied" by the corporate debtor - requiring actual physical possession - which never occurred in the present case. It was further submitted that the ratio of Victory Iron works is inapplicable both on facts and in law to the present case as that case involved a composite arrangement including financial assistance, shareholding, sale certificates, and possession, thereby conferring quasi-ownership rights. None of these features exist here - no financial assistance was given by Appellant No. 1 to Respondent No. 1, no shareholding or transfer of interest occurred, the Development Agreement was terminated, and possession was never delivered. 8.7. It was further pointed out that the same appellant and Resolution Professional previously relied on an identical plea of moratorium in another redevelopment (Govind Tower) which tragically collapsed in Mumbai. The Bombay High Court rejected that contention, permitting redevelopment through a new developer, and this Court upheld the said decision by order 07.02.2025 in SLP (C) No. 18909 of 2024. In yet another matter concerning Tagore N....
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....loper of Respondent No. 1 Society and has acquired lawful rights to undertake redevelopment of the subject property. By the impugned judgment dated 11.09.2024, the High Court directed Respondent Nos. 2 to 7 to grant necessary permissions and approvals for the redevelopment of the Society to Respondent No. 8. 9.1. It was further submitted that the writ petition before the High Court became necessary due to the conduct of Appellant No. 2, who, in his capacity as Resolution Professional of Appellant No. 1, had addressed communications to various authorities seeking to obstruct the redevelopment being carried out by Respondent No. 8. 9.2. The learned counsel submitted that Respondent No. 8 has achieved substantial progress in the project that Appellant No. 1 failed to execute for nearly two decades. Respondent No. 8 has demolished the old unsafe structure, paid transit rent for one year from 01.11.2024, disbursed corpus amounts to the original occupants, many of whom belong to modest means such as drivers and tailors, expended about Rs. 33.65 crores towards redevelopment works, and obtained all requisite permissions and approvals from statutory authorities. 9.3. It was further....
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....he existing structure, the developer was obligated to pay rent compensation and transportation charges to the members of the Society. The redevelopment was stipulated to be completed within a period of 18 months, with an additional grace period of 6 months, making a total of 24 months. For better appreciation, the relevant clauses of the Development Agreement are reproduced below: "13........ (a) The Developers shall be given the possession on the said plot of land for the purposes of the development of the said plot of land. (b) The society and the members shall vacate the said building and move to the temporary alternative accommodation of their choice as per mutually agreed terms for the purpose of development of the said plot of land within 30 days of intimation received from the Developers. However, the Developers shall provide monthly compensation and also shifting charges to each member separately towards vacating the existing Nat and going to temporary alternative accommodation and returning back to the new permanent accommodation in the newly constructed building. At the time of shifting the Developer has agreed to give each members rent compensa....
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.... to remain in force. .... (m)....... That in consideration of the Developers agreeing to construct/reconstruct the said new building and their agreement to incur the costs and expenditures as listed in clauses (a) to (m) hereinabove the society and the granted/ allotted/transferred development rights to the Developers of the said plot of land and the said building and the rights to develop an construct the said new building on the said plot of land and the right to construct and develop and retain and sale and appropriate sale processed of the balance area remaining (which balance area is hereinafter referred to as the "said area available for sale") after accommodating the members as per the terms and conditions of these presents. ..." 12.1. Admittedly, Appellant No. 1 failed to complete the redevelopment within the stipulated time. It was only in 2012 that Appellant No. 1 obtained the requisite NOC for redevelopment, nearly seven years after execution of the original agreement. Thereafter, on 09.04.2014, a Supplementary Development Agreement was executed between the parties, extending the completion period to 40 months from the date of recei....
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.... their premises to the developer after taking rent compensation and Developer is paying rent compensation regularly for 19 members. The schedule of vacating balance 41 members is as follows: (a) Rent compensation to be taken by the members after obtaining the IOD from MCGM. Accordingly developer shall give 1 month notice to the members for collecting the rent and vacated their premises (b) To vacate the respective premises and handover peaceful possession to the developer after taking rent compensation (c) Developer shall issue 1 month advance post dated cheques before expiry of rent compensation of 24 months for further rent. 5.2.2. The above rent compensation shall be paid and be effective from the date of vacating and handing over possession of existing premises to the Developer. Developer shall increase 10% rent after completion of 30 months period from the date of commencement certificate. If the construction work of proposed rehab building is not completed within 40 months from the date of commencement certificate, increase rent after 40 months to be decided mutually. Developer shall pay rent compensation in extended period until delivering....
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....e following issues arise for consideration in this appeal: (i) Whether the termination of the Development Agreement dated 16.10.2005 and Supplementary Agreements dated 23.12.2005 and 09.04.2014 by Respondent No. 1 Society prior to the initiation of the second CIRP was valid and effective in law. (ii) Whether the aforesaid Development Agreement and the Supplementary Agreements constitute "assets" or "property" of the corporate debtor so as to attract the protection of moratorium under Section 14 of the IBC. (iii) Whether the High Court was justified in allowing the writ petition filed by Respondent No. 1 Society and directing the statutory authorities to process and grant approvals in favour of Respondent No.8 for redevelopment of the subject project. (iv) Whether the proceedings before the High Court stood vitiated by violation of the principles of natural justice, as alleged by the appellants. 14. We shall now discuss the issues in detail as follows: Issue No. 1 Whether the termination of the Development Agreement dated 16.10.2005 and Supplementary Agreements dated 23.12.2005 and 09.04.2014 by Respondent No. 1 Society prior to the initi....
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....e. The Society, being the owner of the property and guardian of the members' welfare, cannot be compelled to indefinitely await performance from a defaulting developer. The IBC is not intended to freeze urban welfare projects or protect commercial indolence at the cost of citizens awaiting rehabilitation. 15.5. In Gujarat Urja Vikas Nigam Ltd v. Amit Gupta and others (2021) 7 SCC 209, this Court examined the NCLT's jurisdiction under Section 60(5)(c) of the IBC and held that the power to restrain or set aside termination is confined to cases where - (i) the termination is solely on account of insolvency (for example, by an ipso facto clause); and (ii) such termination would inevitably result in the corporate death of the debtor by depriving it of its sole or central contract essential to the success of the CIRP. The Court cautioned that the NCLT must refrain from interfering with valid contractual terminations, based on breaches unrelated to insolvency. The following observation is pertinent: "176. Given that the terms used in Section 60(5)(c) are of wide import, as recognised in a consistent line of authority, we hold that NCLT was empowered ....
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.... or which relate to the insolvency of corporate debtor... The nexus with the insolvency of corporate debtor must exist." (emphasis supplied) Thus, the residuary jurisdiction of NCLT cannot be invoked if the termination of a contract is based on grounds unrelated to the insolvency of corporate debtor. 29. It is evident that the appellant had time and again informed corporate debtor that its services were deficient, and it was falling foul of its contractual obligations. There is nothing to indicate that the termination of the facilities agreement was motivated by the insolvency of corporate debtor. The trajectory of events makes it clear that the alleged breaches noted in the termination notice dated 10-6-2019 were not a smokescreen to terminate the agreement because of the insolvency of corporate debtor. Thus, we are of the view that NCLT does not have any residuary jurisdiction to entertain the present contractual dispute which has arisen dehors the insolvency of corporate debtor. In the absence of jurisdiction over the dispute, NCLT could not have imposed an ad interim stay on the termination notice. NCLAT has incorrectly upheld [Tata Consultancy Servic....
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....al occupation of the property under a subsisting joint development licence, and the termination sought to recover such occupied property during the moratorium. In the present case, as mentioned earlier, Appellant No. 1 - AA Estates never obtained physical possession. The Society and its members remained in continuous occupation. Termination was effected before the CIRP and was not a recovery during moratorium. 15.11. Section 52 of the Indian Easements Act, 1882 defines a "licence" as a right to do something upon immovable property of another without creating an easement or interest therein. In Associated Hotels of India Limited v. R.N. Kapoor AIR 1959 SC 1262, this Court clarified that a licence merely permits use of premises for a particular purpose while possession and control remain with the owner. The relevant paragraph of the said judgment is extracted below: "28. Under the aforesaid section, if a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence. The legal possession, therefore, continues to be with the owner of the property, but the licen....
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....r in any court of law, tribunal, arbitration panel or other authority; (b) the transfer encumbrance, alienation or disposal by the corporate debtor of any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property; and (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. 16.2. The object of Section 14 is to maintain the corporate debtor's estate as a going concern and to preserve its assets so as to facilitate resolution. The term "property" under Section 3(27) of the IBC is defined in the widest terms to include money, goods, actionable claims, land and every description of movable or immovable, tangible or intangible property, and extends to deeds and instruments evidencing title or interest therein. However, for the purposes of Section 14, only such property or assets which form part of the corporate debtor's estate as on the insolvency commencement date are protected. Mere expectant, contingent or uncrystallized contractual rights do ....
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....roperty may be encroached upon. The developer may take on the entire responsibility to settle with the occupants and to thereafter carry out construction; and (v) An owner may negotiate with a developer to develop a plot of land which is occupied by slum dwellers and which has been declared as a slum. Alternately, there may be old and dilapidated buildings which are occupied by a number of occupants or tenants. The developer may undertake to rehabilitate the occupants or, as the case may be, the slum dwellers and thereafter share the saleable constructed area with the owner. 18. When a pure construction contract is entered into, the contractor has no interest in either the land or the construction which is carried out. But in various other categories of development agreements, the developer may have acquired a valuable right either in the property or in the constructed area. The terms of the agreement are crucial in determining whether any interest has been created in the land or in respect of rights in the land in favour of the developer and if so, the nature and extent of the rights. 19. In a construction contract, the contractor has no interest in eith....
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....the rights conferred under the agreement, created third party rights in favour of flat purchasers in the proposed building. In such a situation, if for no fault of the developer, the owner seeks to resile from the agreement and terminates the development agreement, it may be difficult to hold that the developer is not entitled to enforce his rights. This of course is dependent on the terms of the agreement in each case. There cannot be a uniform formula for determining whether an agreement granting development rights can be specifically enforced and it would depend on the nature of the agreement in each case and the rights created under it." 16.4. The above exposition clarifies that whether a development agreement constitutes an "asset" of the corporate debtor depends on whether it creates a proprietary, possessory or enforceable right in its favour at the relevant time. Not every executory or conditional contract amounts to an asset. The protection of Section 14 is confined to existing, subsisting and enforceable rights as on the date of commencement of the CIRP. 16.5. In Rajendra K. Bhutta (supra), this Court held that termination of a joint development agreement during the....
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....r Section 14 does not have the effect of reviving or re-creating contractual rights that have been extinguished before insolvency. 16.7. As already stated, in the present case, it is evident that the Development Agreement dated 16.10.2005 and the Supplementary Agreements dated 23.12.2005 and 09.04.2014 stood terminated by Respondent No. 1 Society on account of persistent default and failure of the developer to commence or complete the project. The termination was duly communicated through letters dated 09.06.2019, 02.12.2019 and 06.11.2021 - each preceding the initiation of the second CIRP on 06.12.2022. No subsisting challenge to such termination was pending when CIRP commenced. Upon such termination, the corporate debtor was left, at best, with a claim for damages, which is a mere unsecured monetary claim and not a proprietary right capable of protection under Section 14. 16.8. The Development Agreement expressly stipulates that redevelopment of accommodation for the society members was a contractual obligation of the developer and did not create any proprietary right in its favour. Only upon full and proper performance would the developer earn a "free-sale" entitlement, wh....
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....e subject project. 17. With respect to the maintainability of the writ petition, the principal grievance of the appellants is that the High Court exceeded its jurisdiction in entertaining the writ petition filed by Respondent No. 1 Society and issuing directions to the planning and municipal authorities to process and grant approvals in favour of Respondent No. 8. The appellants contend that once the CIRP had commenced against the corporate debtor, the High Court ought to have deferred to the jurisdiction of the National Company Law Tribunal and refrained from passing any order that could interfere with the moratorium under Section 14 of the IBC. The appellants further state that the writ petition involved disputed questions of fact concerning the validity of termination and ownership of redevelopment rights, which could not have been adjudicated in proceedings under Article 226 of the Constitution. 17.1. On the other hand, Respondent No. 1 Society contends that the High Court's intervention was necessitated by the paralysis caused by the pendency of CIRP and the refusal of the statutory authorities to process its proposal for redevelopment through the newly appointed develop....
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....eir powers in excess of their statutory limits. But in view of the use of the expression "any person" in Article 226 (1), courts recognized that the jurisdiction of the High Court extended even over private individuals, provided the nature of the duties performed by such private individuals, are public in nature. Therefore, the remedies provided under Article 226 are public law remedies, which stand in contrast to the remedies available in private law. 28. As we have indicated elsewhere, the MMDR Act, 1957 is a Parliamentary enactment traceable to Entry 54 in List I of the Seventh Schedule. This Entry 54 speaks about regulation of mines and development of minerals to the extent to which such regulation and development under the control of the Union, is declared by Parliament by law to be expedient in public interest. In fact the expression "public interest" is used only in 3 out of 97 entries in List I, one of which is Entry 54, the other two being Entries 52 and 56. Interestingly, Entry 23 in List II does not use the expression "public interest", though it also deals with regulation of mines and mineral development, subject to the provisions of List I. It is this element ....
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....d v. Edelweiss Asset Reconstruction Co. Ltd. (2021) 9 SCC 657) 17.6. It is also significant to note that the High Court did not direct the authorities to grant approvals as a matter of right; it merely required them to consider and process the Society's application on its own merits. Such an order is procedural in nature and ensures that the statutory authorities discharge their duties in accordance with law. It neither prejudices the CIRP proceedings nor affects any stakeholder's rights under the IBC. 17.7. Furthermore, the record discloses that Respondent No. 8 has already commenced redevelopment pursuant to a fresh agreement executed in December 2023 and achieved substantial progress, including demolition of the existing structure and payment of rent to the members. The High Court rightly took note of these developments and passed the impugned judgment to prevent administrative paralysis and to protect the rehabilitation rights of the residents who had long awaited redevelopment. 17.8. In light of the above, this Court holds that the High Court was justified in entertaining the writ petition and issuing directions to the statutory authorities to process and consider the....
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.... party complaining has suffered actual prejudice or denial of a fair opportunity. 18.3. In the present case, the writ petition filed by Respondent No. 1 Society was pending before the High Court for a considerable period prior to its final hearing. The record shows that the appellants were duly represented by counsel throughout and were aware of the proceedings. No application for adjournment or extension of time to file a reply was made. The proceedings on 03.09.2024 were conducted in the presence of the counsel for the Resolution Professional, whose submissions were duly recorded in the impugned judgment. In these circumstances, it cannot be said that the High Court acted in undue haste or deprived the appellants of a reasonable opportunity of being heard. 18.4. Notably, the writ petition did not seek any direct relief against the appellants. The prayer was confined to a mandamus directing the statutory authorities to process and grant redevelopment approvals in favour of Respondent No. 8, the newly appointed developer. The High Court's directions were limited to the administrative authorities and did not adjudicate upon private contractual disputes or alter the rights inte....
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.... legitimate rights of residents. The rights of a developer are purely contingent upon due performance, and no subsisting "asset" or "proprietary right" survives once termination has lawfully occurred. 18.9. These repeated defaults and prolonged inaction reveal a consistent lack of bona fides on the part of the appellants. The High Court's intervention in the present case was therefore not only legally sustainable but also necessary to safeguard the rights of the residents and to ensure that the appellants did not misuse the pendency of insolvency proceedings to indefinitely stall redevelopment. 18.10. Accordingly, we hold that the proceedings before the High Court were conducted in substantial compliance with the principles of natural justice. The appellants were duly represented, were not denied any reasonable opportunity of hearing, and have failed to establish any demonstrable prejudice. The plea of violation of natural justice is therefore devoid of substance and stands rejected. Conclusion 19. In the present case, Appellant No. 1 - corporate debtor failed to take any meaningful steps towards fulfilling its obligations under the Development Agreement and Supplementa....
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.... of natural justice. The appellants were afforded a fair opportunity of hearing, and no real prejudice or failure of justice has been demonstrated. 22. Accordingly, this appeal is devoid of merit and is liable to be dismissed. 23. This case highlights the larger human dimension underlying urban redevelopment - the right of citizens to live with dignity in safe and habitable dwellings. Slum redevelopment projects are not mere commercial ventures but social welfare initiatives aimed at transforming unsafe tenements into dignified homes. The role of a developer in such projects carries a public character; it entails a responsibility to fulfil the collective aspirations of hundreds of families awaiting rehabilitation and cannot be viewed solely through a profit-driven lens. 23.1. When such projects are delayed or abandoned, it is the residents - often living in hazardous or temporary conditions - who suffer the greatest hardship. In this context, the invocation of insolvency proceedings or the moratorium under the Insolvency and Bankruptcy Code, 2016 cannot become a legal device to indefinitely stall redevelopment or to obstruct the legitimate rights of slum dwellers and coope....