AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (3) TMI 1619
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....e Tribunal admitted an application bearing CP (IB) No. 26/GB/2022 filed under Section 10 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') on 20.01.2023. 3. Mr. Sandeep Khaitan was appointed as the Resolution Professional/Respondent No.1 (RP) vide order dated 17.03.2023. 4. The Appellant and his brother Sumit Agarwal (both promoters of CD) jointly purchased a land admeasuring 56,300 sq.ft., covered under Dag No. 395 of periodic Patta No. 204, under village Rangamati, mouza Bihaguri, P.O. Pithakhowa, P.S Tazpur, Dist. Sontipur, Assam (in short 'Subject Property') on 29.12.2014. 5. A portion of the subject property i.e land admeasuring 20,060 sq. ft. was leased by the aforesaid owners to the CD vide lease deed dated 21.01.2016 for a period of 15 years w.e.f 01.06.2015. The leased was to expire on 31.05.2030. 6. The leased property is landlocked from three sides and has a pathway to access. 7. The Appellant mortgaged the subject property with State Bank of India (Respondent No. 2) for securing loan facility availed by the CD by executing a deed of personal guarantee with his brother on 21.03.2016, 31.09.2019 and 29.09.2020. 8. The agency of Automobile of ....
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.... r/w Rule 11 of the Rules as an objection to the application bearing I.A No. 127 of 2023 in which it was alleged that the Appellant is the co-owner of the property which has ben mortgaged with SBI as security for the loan availed by the CD and that CD holds leasehold rights in respect of the some part of the said property. It is also alleged, in the objection, that in the second EOI, the Respondent No. 2 sent a letter dated 05.09.2023 to the RP who had decided to include the personal property in the CIRP of the CD. This also has been discussed in the 9th meeting of the CoC. 18. The Appellant also raised the objection that the personal property of the objector/appellant does not form part of the assets of the CD in the Information Memorandum (IM) and the RFRP as reflected in the minutes of the meeting of the CoC held on 13.10.2023. 19. It is alleged that the Appellant had also raised formal objection vide email dated 19.10.2023 sent to the RP against the inclusion of his personal property in the CIRP to which RP replied vide email dated 25.10.2023 in which it was alleged that the R2/SBI is the sole holder of the equitable mortgage of the personal property of the Appellant and ....
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.... Leased Property of the CD while not touching the adjoining area of land, especially when there is one common boundary for the entire identified piece of land. 5.7. In Mr Prateek Gupta & Ors v Kotak Mahindra Bank Limited Company Appeal (AT)(Insolvency) No. 147 of 2022, the Hon'ble NCLAT permitted the composite sale of land in which a portion belonged to the CD while the larger remaining portion mortgaged to the Bank belonged to the ex-Directors of the CD. This ruling is an aid to understand how the qualms of the Objector are misplaced at this present stage of merely allowing the liquidation of the CD. Even if the liquidation is allowed, the abovementioned case narrates how the composite property may be treated in the following manner: "7. After considering the submission which have been made by the Learned Counsel for the Appellant, we are of the view that in the peculiar facts and circumstances of the case, no error can be found with the Order of the Adjudicating Authority directing for composite sale of land of both the parts under SARFARSI Act, 2002. Even the Liquidator when he sells the property under the liquidation, he has to follow the procedure under t....
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....further submitted that the first form G was published on 10.04.2023. Though two EOIs were received but no resolution plan was submitted for the consideration of CoC, therefore, the argument of the Appellant that if the assets of personal guarantors are not included even then there would have been resolution plan is misplaced because CD which was in the automobile business and its agency has already been cancelled. It had no other assets except leasehold rights in the leased property limited up to 15 years from 2015 out of which 9 years had already lapsed. The leased property is a part of subject property owned by promoters including the Appellant which is landlocked from three sides, therefore, there is no possibility of viable resolution plan for CD which could have been submitted without the property of the personal guarantor. 30. Counsel for the SBI has further argued that the right of the Appellant is not going to be affected by the composite sale of the immovable property of the CD and the Appellant because Respondent No. 2 has an exclusive charge over the immovable property which is registered in the name of the Appellant and his brother who had time to time executed the d....
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....ent No. 2, Respondent No. 1 apprised that the Appellant was communicated about the inclusion of the subject property. During the same meeting Sumit Agarwal appeared as authorised representative of one to the PRA, namely, PADPL but no objection on the inclusion of the subject property was raised. Therefore, it is submitted that the objection filed by the application bearing I.A No. 13 of 2024 was totally after thought especially when the application under Section 10 is filed by the promoter/guarantor. 32. Counsel for Respondent No. 6 (Liquidator) has also raised the same argument which has been raised by the Respondent No. 2. It is submitted by him that on 05.07.2023 the suspended board proposed a 2nd invitation and after discussion, held in the CoC meeting on inclusion of the larger land in the process in which the Appellant and his brother participated in the entire process including deliberations and negotiations on the resolution plans. It is submitted that the CoC has passed the resolution for liquidation of the CD with 99.78% voting share which cannot be challenged by the Appellant being the commercial wisdom of the CoC and in this regard, he has also relied upon the decisi....