TaxTMI 
TaxTMI 
2025 (12) TMI 1321
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....'s enjoyment of the leasehold property being 315.42 (approx.) acres land. The leasehold land was demised for industrial/ factory purposes by a sub lease dated 03.09.2009 by WBIDC to one Ram Swarup Industries Limited ("RIL" for short) which was engaged in manufacturing of steel, thermo-mechanically treated bars and steel wires. The learned Single Judge dismissed the writ petition bearing WPO NO. 2392 of 2022, by a judgment dated 29.02.2024, which is the subject matter of the present appeal. 2. Briefly stating, the writ petition was filed in view of the fact/s that RIL was admitted into insolvency. The writ petitioner submitted a resolution plan. For effective take over by the writ petitioner WBIDC was required to transfer the lease for the Industrial land in favour of the writ petitioner. WBIDC was also one of the financial creditors of the Corporate Debtor RIL, and part of the Committee of Creditors (COC) which voted and approved the resolution plan submitted by the writ petitioners. Therefore, the writ petitioner was of the view that the leasehold land should be transferred in their favour without any charges whatsoever and WBIDC should ensure such transfer on the same terms an....
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....ned to approve the waiver as prayed for in the plan. It is left open for determination by the appropriate authorities if applied for the wavier/exemption as prayed for in the Plan." 5. The writ petitioner/ appellants were of the view that non-approval of Clause 15.15.5 of the resolution plan would have the consequence of making the appellants incur additional sums towards transfer charges as well as lease rents, penalties and interests which may render the resolution plan unviable and unfeasible. In such circumstances, they preferred an appeal against the order of the NCLT approving the resolution plan. The appeal was preferred before the NCLAT and numbered as Company Appeal (AT) (Insolvency) No. 995 of 2019, and dismissed by NCLAT by an order dated 04.03.2021. 6. After dismissal of the appeal by the NCLAT the WBIDC raised the demand for transfer fee calculated at 10% of the prevailing market rate for the Kharagpur land, quantified at Rs. 6,45,66,626/- (Rupees six crore forty five lakhs sixty six thousand six hundred and twenty six). The appellants raised an objection before the WBIDC that the demand raised by it was unjustified for the following reasons: "i) By reas....
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....solution Plan subject to the below mentioned modification. ii) The Resolution Plan approved by the CoC shall include the portion of security expenses incurred by the Financial Creditor/West Bengal Industrial Development Corporation Limited (WBIDCL) which is admitted by the RP in the upfront amount payable by the Resolution Applicant to the Creditors. iii) The Resolution Pian, shall come into force from the date of pronouncement of this order." 2. The above order of the NCLT has been affirmed by the National Company Law Appellate Tribunal. 3. The resolution plan was approved by the Committee of Creditors in their commercial wisdom. The resolution plan has been approved by the NCLT in terms of the above directions (save and except for a minor aspect pertaining to the security expenses of West Bengal Industrial Development Corporation, on which there is no cavil or contest on either side). No substantial question of law has been raised by the appellant. 4. The appeal is accordingly dismissed. 5. Pending applications stand disposed of." 9. The writ petitioner in the above factual background filed the writ petition claiming substa....
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....e fact that the adjudicating authority/ NCLT approved the resolution plan on 04.09.2019 holding that any exemption from payment, as sought for by the present writ petitioner, were to be dealt with by the respective authorities. The learned Single Judge thus, found no reason to interfere with the notices impugned in the writ petition and the demand raised by WBIDC. 13. Mr. Ratnanko Banerji, learned Senior Advocate appearing for the writ petitioner/appellant submitted that findings of the learned Single Judge regarding misrepresentation or suppression by the writ petitioner are unsustainable. The petitioner did not approach the writ Court by resorting to any suppression or misrepresentation. The submission advanced on behalf of the writ petitioner, referring to para 15.15.5 were founded on the writ petitioner's perception based on a bona fide misinterpretation of the NCLAT order. Learned Senior Advocate submitted that even if the submissions founded on para 15.15.5 were found to be unsustainable, the remaining grounds urged by the writ petitioner were required to be considered and adjudicated by the writ Court. The Hon'ble Single Judge, however, has not considered and decided the ....
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....th by the respective authorities if applied for. With the above observations, we are not inclined to approve the waiver as prayed for in the plan. It is left open for determination by the appropriate authorities if applied for the wavier/exemption as prayed for in the Plan." The claim was specifically rejected by the adjudicating authority, in the above noted terms, which received an approval from the appellate authority (NCLAT). Even the Supreme Court of India in Civil Appeal No. 1142 of 2021 did not interfere with order of the NCLT dated 04.09.2019, extracted above. Therefore, the petitioner's claim is barred by the principle of issue estoppel as per decision of the Apex Court in the case of Ishwar Dutt vs. Land Acquisition Collector and Another Reported in (2005) 7 SCC 190. 14. The writ petitioner, however, has reagitated the same issue in the writ proceedings, but by resorting to a willful and deliberate misrepresentation of their submissions recorded in the proceedings before the NCLAT as being observations of the NCLAT. The findings in this regard are recorded by the Hon'ble Single Judge in the order passed in the writ proceeding. Such findings are based on the averments m....
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....uitable writ jurisdiction by resorting to willful and deliberate suppression and misrepresentation of material facts, such party would not be entitled to any relief by the writ Court, and a writ petition is liable to be dismissed on this ground alone. We take note of the fact that the learned Single Judge has recorded a specific finding relying on submissions advanced on behalf of the petitioner that the writ petitioner misrepresented its submissions before the NCLAT, as being observations of the NCLAT. Relying on such misrepresentation a relief was sought from the writ Court that in view of such observations of NCLAT, the WBIDC could not raise a demand for transfer fee. We find from a bare perusal of paragraphs 9 to 12 of the writ petition that there is force in the submissions advanced by the learned Counsel for the respondent that the writ petitioner has distorted the facts regarding order passed by the NCLAT with a view to misrepresent the same, to make out a case that NCLAT had found the demand for transfer fee raised by the WBIDC to be unsustainable. In paragraphs 9 to 12, the writ petitioner has stated: "9. The operative part of the said order of the NCLT is as unde....
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....' regarding security charge, which has been approved. Considering the above, it is clear that WBIDC's claim is an afterthought and barred by estoppel, waiver and are to be acquiescence. No subsequent claims considered after the Adjudicating Authority has approved the Resolution Plan." 25. The Insolvency and Bankruptcy Code, 2016 has been enacted to facilitate the reorganization based on an entirely different premise. It is enacted to facilitate the reorganization and Resolution Process of a company in distress. It empowers creditors, represented by a 'CoC', to rescue a company through resolution when the company experiences a serious threat to its continuity. For this purpose, the 'CoC', in its Commercial wisdom, can accept any payment against its outstanding liability to ensure resolution of the Corporate Debtor in accordance with the judgement of the Hon'ble Supreme Court in case of Committee of Creditors of Essar Steel India Ltd v Satish Kumar Gupta 2019 SCC Online SC 1478. Further, after it received the approval of the 'CoC' and the Adjudicating Authority, the entire process of Resolution Plan is to offer a fresh slate, on which the ....
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....submissions made on behalf of the writ petitioner before the NCLAT and not observations. The writ petitioner has gone one step further by making a statement in paragraph 12 of the writ petition that the misrepresented order of NCLAT in paragraph 11 was confirmed by the Hon'ble Supreme Court in Civil Appeal No. 1142 of 2021. We, therefore, approve the conclusion of the learned Single judge in the order under appeal that the writ petition was liable to be dismissed for willful misrepresentation and deliberate suppression of material and relevant facts. The order of the NCLAT has been quoted in such a manner by the writ petitioner, so as to suppress the fact that the NCLAT had recorded submissions therein; and has explicitly been quoted to misrepresent the same as being observations of the NCLAT. 18. It is clear from a bare reading of the writ petition, as also submissions in support thereof recorded in the order of the Hon'ble Single Judge that the writ petitioner did not approach the writ Court with clean hands. Therefore, we are in agreement with the conclusions of the Hon'ble Single Judge relying on decisions of the Apex Court in the case of K.D. Sharma vs. Steel Authority of I....
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....". Such liberty was granted by the NCLT in paragraph 67 of the order dated 04.09.2019 which was affirmed by the NCLAT. Even the Apex Court did not interfere with the decision of the NCLT in this regard. The writ petitioner itself has sought a transfer of the leasehold land in favour of the corporate debtor and, therefore, it does not lie in the mouth of the writ petitioner to submit that in the present case no transfer of leasehold rights is involved. The other decision of the Hon'ble Single Judge in the case of M/s. Din Chemicals & Coatings Pvt. Ltd. & Anr. (Supra) is on the same lines and in the same factual matrix wherein there was transfer of shares and no transfer of leasehold rights was involved. These two judgments therefore, have no application in the facts and circumstances of the present case. We are, therefore, not persuaded by these two judgments to accept the submissions advanced by the learned Senior Advocate, since the present case does not involve only a change in shareholding; and involves transfer of leasehold interest. 22. The third decision relied of a co-ordinate Bench also emanates from facts wherein there was an issue of transfer of shareholding and there ....
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.... writ petitioners. 26. Insofar as the principle of "clean slate" based on Section 31 of IBC, we find no forces in such submission also. There is no question of the demand for transfer fee to be considered frozen, since the resolution plan as approved by the adjudicating authority did not approve any clause regarding the demand for transfer fee raised by WBIDC. In fact, this issue was specifically left open by the NCLT to be raised by the writ petitioner before the WBIDC. The judgments, therefore, relied upon in this regard by the learned Senior Advocate for the writ petitioner in the case of Committee of Creditors of Essar Steel India Limited Vs. Satish Kumar Gupta & Ors. reported in 2019 SCC OnLine SC 1478, Ghanashyam Mishra and Sons Private Limited Through the Authorised Signatory Vs. Edelweiss Asset Reconstruction Company Limited Through The Directors & Others reported in (2021) 9 SCC 657. Decision of this Court in FMAT 1262 of 2022 in the case of SPS Steels Rolling Mills Limited and Ors. Vs. Asansol Durgapur Development Authority and Anr. have no application to the facts and circumstances of the present case. In the present case the resolution plans itself contemplated such ....