TaxTMI 
TaxTMI 
2026 (4) TMI 1281
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.... These two Appeals have been filed challenging the order dated 05.06.2025 passed by National Company Law Tribunal, New Delhi Bench (Court-V) in IA No.2729/2021 (filed by the Appellant) & IA No.5134/2020 (filed by the Resolution Professional) in Company Petition No.(IB)-755/PB/2018. By the impugned order the Adjudicating Authority has disposed of both the IAs. Aggrieved by which order, these two Appeals have been filed. 2. Brief facts of the case necessary to be noticed for deciding the Appeal are: (i) M/s Triveni Ferrous Infrastructure (P) Ltd. (Predecessor of the Appellant - M/s Maximal Infrastructure Pvt. Ltd.) obtained license No.34 of 2007 for setting up a group housing colony. Two other license Nos.35 and 36 of 2007 were granted to Mr. Sumit S/o H.C. Mittal and M/s Triveni Ferrous Infrastructure (P) Ltd., M/s Ferrous Alloy Forgings (P) Ltd. for developing a group housing at Village-Tikkawali, District Faridabad. Total land covered by the three licenses was 48.038 acres. (ii) On 15.01.2008, M/s Triveni Ferrous Infrastructure (P) Ltd. and other owners of the land executed a Development Agreement dated 15.01.2008 in favour of M/s PAL Infrastructure & Develo....
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....PAL Infrastructure & Developer Pvt. Ltd. Certain clauses also dealt with bifurcation of land. (vii) On an application filed by the Financial Creditor S.C.S.L Buildwell Pvt. Ltd. proceedings under Section 7 were initiated against the CD - M/s PAL Infrastructure & Developer Pvt. Ltd. by an order dated 05.09.2019. (viii) Under the orders of the Supreme Court India dated 05.05.2015, Haryana RERA passed various orders with regard to bifurcation of license, including order dated 01.10.2019. (ix) With regard to bifurcation of license, proceedings were also initiated before the DTCP. The Appellant as well as other parties appeared before the DTCP. The DTCP noticed in various orders that licensee has transferred development rights to five Developer Companies. Proceedings were also taken before the DTCP for transfer of beneficial rights under the bifurcated license. Beneficial rights were transferred to two Companies heritage and Ors. Beneficial rights were not transferred in favour of M/s PAL Infrastructure & Developer Pvt. Ltd., since it was under liquidation (insolvency resolution process), which was noted by DTCP. We shall notice the details of order passed by ....
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....ivil No. 12865 of 2024 against the order dated 16.11.2023 passed by DTCP, which Writ Petitions were dismissed as withdrawn on 03.07.2024 as the RP informed the Court that he has already sought the same relief, which is pending before the NCLT and sought permission to withdraw, which was allowed on 03.07.2024. (xvi) The Adjudicating Authority passed an order on 25.04.2024 directing the partis to file affidavit regarding construction on the project land. In pursuance of the order of Adjudicating Authority, affidavits were filed by the RP, giving details of the construction, whereas an affidavit was filed by the Appellant stating that no construction has taken place on the project after cancellation of the Development Agreement. (xvii) The Adjudicating Authority heard the parties and by the impugned order disposed of the applications. The Adjudicating Authority did not grant the relief to the Appellant to exclude the project land from the assets of the CD and upheld the decision of the RP to include the assets in the information memorandum. The Appellant was also permitted to file its claim before the RP, if any. Both the applications were disposed of accordingly. Ag....
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....development rights could not have been the assets of the CD, it being no more in existence on the date when CIRP commenced against the CD. It is submitted that the Development Agreement dated 15.01.2008 with the CD got automatically terminated as per Clause 5.2 of the Development Agreement, which was intimated to the CD vide letter dated 17.06.2009. The Agreement itself provided that in case of dishonour of cheques given for consideration, the Agreement shall automatically terminated and 10% of the total contractual amount shall be forfeited and balance shall be refunded within a period of one year. In the letter dated 17.06.2009 written to the CD, it was mentioned that the CD should collect the cheque from the owners. The Directors of the CD being absconding, the amount received towards consideration, could not have been paid to the CD. It is submitted that the factum of termination by letter dated 17.06.2009 is not in dispute. The RP never disputed the termination of Agreement. In the reply filed by the Appellant to IA filed by the RP, it was pleaded that Development Agreement was terminated. The PAL Garden Allottee Welfare Association wrote a letter dated 18.04.2016 to the DTCP,....
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....r excluding the assets from the CIRP of the CD. 7. Learned Counsel appearing for the RP refuting the submissions of the Appellant submits that development rights were with the CD on the date of commencement of the CIRP. As per the Development Agreement, the CD had made a payment of Rs.39,59,02,029/- and Rs. 2,18,00,000/- to the owners. Under the Development Agreement, it was the obligation of the owners to refund the amount received after forfeiting 10% of the amount within one year. The Agreement having not been complied by the Appellant, it is not open for the Appellant to contend that development rights in favour of the CD has been lost. It is submitted that the letter dated 17.06.2009 never saw the light of the day and for the first time it was filed before the Adjudicating Authority along with an affidavit of the Appellant dated 17.09.2024. The letter dated 17.06.2009 was never produced by the Appellant prior to the said date either in the CIRP or before any other proceedings. The letter dated 17.06.2009 was never served on Corporate Debtor. Right from 2009 till commencement of CIRP no communication was sent by Appellant, Corporate Debtor even claiming termination of Develo....
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....thority referring to relevant materials to prove that construction was continued by the CD and 70% of the construction is complete. The Appellant having admitted the development rights in favour of the CD before Haryana RERA and DTCP, it cannot now claim that development rights were not continued in favour of the CD. After CIRP having commenced, the rights of the CD have to be determined in the CIRP and Adjudicating Authority had every jurisdiction to consider the application filed by the RP. The application filed by the Appellant for excluding the assets from CIRP of the CD has rightly been rejected. Transfer of development rights in favour of Parcella in the year 2022 by Appellant is void and without jurisdiction. 8. Learned Senior Counsel appearing for PAL Garden Allottee Welfare Association submits that the CD has allotted various units to 664 allottees. The allottees have invested their lifelong savings in the project and are waiting for their homes from 2009. Several complaints were filed before the DTCP and Writ Petitions were also filed by the allottees. It is submitted that in view of the order of the Hon'ble Supreme Court dated 05.05.2015, it is the Mittal Group, i.e. ....
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.... learned Counsel for the parties and have perused the records. 11. From the submissions made by learned Counsel for the parties and materials on record, following are the issues, which arise for consideration in these Appeals: (I) Whether the development rights in the subject land given to the CD by owners (Appellant herein) were terminated vide letter dated 17.06.2009, as claimed by the Appellant? (II) Whether in the proceeding before the Hon'ble Supreme Court in Writ Petition (Criminal) No.5 of 2015, between Seth Group and Mittal Group, the termination of development rights in favour of the PAL Infrastructure Developers Pvt. Ltd. was brought to notice of the Hon'ble Supreme Court and whether the order of the Hon'ble Supreme Court notices the CD, as to whom development rights were transferred? (III) Whether the Appellant before the Haryana RERA and DTCP has pleaded continuance of development right in favour of the CD till the year 2019, before initiation of CIRP against the CD? (IV) Whether letter dated 17.06.2009, even if issued by predecessor of the Appellant, as claimed by the Appellant was given effect to? (V) Whether the Adjudic....
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....n of Late Shri H.C Mittal for setting a group housing colony with respect to land of 3 acres in Village Tikkawali. License No.36/2007 was granted in favour of M/s. Ferrous Alloys Forgings Pvt. Ltd. for setting up group housing colony at Village- Tikkawali on an area of 7.22 acres. After acquiring the above license for developing a group housing colony, M/s. Triveni Ferrous Infrastructure, M/s. Ferrous Alloy Forgings Pvt. Ltd. and Mr. Sumit Mittal referred to as 'first party', 'second party' and 'third party' entered into an agreement dated 15.01.2008 with M/s. Pal Infrastructure & Developers Pvt. Ltd.- 'fourth party' for consideration as agreed in the agreement. By Development Agreement, owners granted, conveyed and transferred to the fourth party all their rights, titles interest in the construction and sale of the part of the group housing over land measuring 7.2431 acres situated in Sector-89, Faridabad, which comprises of 797213.34 sq. ft. of sanctioned FSI and both the parties had undertaken to develop and construct the said area in accordance with sanctioned plan. Approval and license is subject to terms and conditions. Total consideration was fixed as Rs.51,89,52,703/-. Out ....
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....nce amount will be refunded by the First Party without any interest to the FOURTH PARTY with in a period of one year from the date of such termination." 14. It is on the record that certain cheques given by the Corporate Debtor for balance consideration were dishonoured and the proceedings under Section 138 of the Negotiable Instrument Act were initiated against the Corporate Debtor in the Court of Magistrate. A Power of Attorney was also executed in favour of nominee of the Corporate Debtor by the owners dated 20.03.2008 which was registered PoA which PoA was given both by M/s. Triveni Ferrous Infrastructure Pvt. Ltd. and M/s. Ferrous Alloys Forgings Pvt. Ltd. Power of Attorney came to be cancelled by Cancellation Deed of General Power of Attorney dated 17.06.2009. We have noticed above that disputes between two groups Seth Group and Mittal Group arose thereafter and Company Petition as well as criminal proceedings were initiated. Writ Petition (Criminal) No.5 of 2015 was filed by Ashish Seth in which proceeding Hon'ble Supreme Court appointed Justice R.V. Raveendran, Former Judge of the Hon'ble Supreme Court as Mediator and on the basis of Memorandum of Settlement dated 04.05.....
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....s not produced. Appellant itself filed IA No.2729 of 2021 on 01.06.2021 in which IA also the letter terminating the Development Agreement was not brought on the record. For the first time, the letter was brought on record by means of Affidavit which we need to notice and the averments made in the Affidavit by which Appellant brought letter on record along with Affidavit of one Hari Mohan Gupta. In paragraph 8 of the Affidavit, it was pleaded on behalf of the Appellant that the letter of termination was not traceable due to old documents and it is only now it has been able to find the letter in the old files of the office. It is useful to notice paragraph 8 of the letter which is as follows:- "8. It is further submitted that it is always been the case of the applicant/Maximal before this Hon'ble Tribunal that the Maximal has sent a letter of termination of agreement to PAL and also offered return of money after deduction of 10% forfeiture of the total contractual amount, but the same was not traceable due to old document. But now, as the applicant/ deponent was going through the old files in the office pertinent to licence of DTCP, able to find the letter dated 17.06.20....
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....over by you to M/s Triveni Ferrous Infrastructure Pvt. Ltd., under the agreement dated 15.01.08 got disnonoured on presentation. 5. Due to dishonour of post-dated cheques, the agreement dated 15.01.08 stand automatically terminated, in terms of clause 5.2 of the agreement. 6. In terms of the clause 5.3 of the agreement, you are under an obligation to hand over the original copies of the Agreement and Power of Attorney for destruction within 48 hours from such dishonour of cheque. 7. Today, the Power of Attorney dated 20.03.08 is also cancelled by the registered cancellation deed dated 17.06.09. 8. There has been no construction activity going on the site since long, and there is no guard or labour of yours at the site/ land. You have already abandoned the site. M/s Triveni Ferrous Infrastructure Pvt. Ltd. has already taken possession of the site and accordingly, has placed our guards and labour on the site. You are accordingly advised not to enter the site henceforth. 9. As the agreement dated 15.01.08 has already stand terminated automatically. leaving no right in your favour in the land and construction, we request you to han....
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....ebtor. We need to notice certain relevant terms of Memorandum of Settlement between the parties which have clear reflection on the development rights which was granted to the Corporate Debtor. In paragraph 1.2.1 of the MoS notices the liability of 59.05 Crores towards Directorate of Town and Country Planning, Haryana in respect of License Nos.34, 35 and 36 of 2007. Both the parties had undertaken to share the liability. Clause 1.3 also require payment of license fee to the Directorate of Town and Country Planning, Haryana as detailed therein. Paragraph 2 of the MoS mentioned that the amount to be paid by Seth Group towards license fee also includes the liability of Seth Group and also on behalf of M/s. Pal Infrastructure & Developer Pvt. Ltd., M/s. ORS Infrastructure Pvt. Ltd. and M/s. Heritage Cottages Pvt. Ltd. Similarly, the said liability will also be borne by the Mittal Group towards the above three companies. Paragraph 2 of the MoS is as follows:- "2. The amount to be paid by Seth Group towards License Fee under Clause 1.3 and the Bank Guarantee to be furnished by Seth Group towards IDW, under Clause 1.4 above, includes not only the liability of Seth Group in that be....
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....e requisite information to TFIPL, as required by DTCP, Haryana under license No. 34, 35 & 36 of 2007; pay the dues of TFIPL against their respective agreements; to pay the dues of Mittal Group and Seth Group as paid by them on behalf of PAL, ORS and Heritage under this Memorandum of Settlement for renewal of license." 20. The said clause clearly recognizes continuance of development agreement with the Corporate Debtor, ORS and Heritage and right was given to terminate those agreements if PAL, ORS and Heritage failed to provide information and to pay the dues which are paid by Mittal and Seth Groups on their behalf. The above clause leaves no room for doubt that no case was set up by the Mittal and Seth Groups that development agreement has been terminated. Had the development agreement was terminated? There was no question of paying any amount to DTCP and giving liberty to company to terminate the agreement. 21. MoS under heading (G) 'renewal of license' provided steps for renewal of license nos.34, 35 and 36 of 2007. Clause 18 under heading (G) required Mittal Group to submit an application for renewal and pay all charges levelled and payable by PAL, ORS and Heritage for ren....
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.... the nominated approving authority under the Agreements entered by TFIPL, FAFPL and Mr. Sumit Mittal with PAL, ORS and Heritage. TFIPL, FAFPL and Mr. Sumit Mittal shall inform PAL, ORS and Heritage about the said change in the approving authority." 24. The above clearly mentioned that Mr. Surender Seth will no longer be the nominated approving authority under the Agreements entered by TFIPL, FAFPL and Mr. Sumit Mittal with PAL, ORS and Heritage and that was only with respect to the change of the approving authority. The above clauses 32 and 35 when read together clearly means that what Seth Group informed that they having cancelled the GPA on 17.06.2009, they are no longer approving authority with regard to contract entered between the owners and PAL. We further noticed that the above clauses of MoS has been made part of the order of the Hon'ble Supreme Court. The Hon'ble Supreme Court after noticing all relevant clauses of the MoS has held as follows:- "We have recorded the settlement in entirety as that has to become a part of the order of this Court and it is so directed. The parties are directed to adhere to the terms and conditions of the Settlement and the underta....
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..... The said TIFPL also availed licences Nos. 34, 35 and 36 from competent au-thorities in the year 2007 in respect of the land bearing Sec-tor 89 with an intent to develop the said Sector 89 land. Sub-sequently both the parties being Seth Group and Mittal Group agreed that the development in the said land be divided and carried out separately and thereupon the development rights in Sector 89 land, parcel of 48.03 acres of land belonging to TIFPL, was sold in the following manner: 26. In the above order, it is also relevant to notice that after hearing both the parties, the Hon'ble Supreme Court has noticed the submissions advanced by the Appellant i.e. Maximal Infrastructure Pvt. Ltd. Submission which has been noticed in paragraph 6.4 by Maximal Infrastructure Pvt. Ltd. was that licensees are left with no interest in the project land. They have divested of their right, title and interest in 48.08 acres way back in the year 2007-2008. Paragraph 6.4 of the order is as follows:- "6.4 It is submitted that even otherwise the Maximal has no financial ability to pay any amounts. Maximal and other licensee divested of their right, title and interest in 48.08 acres way back in th....
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.... Resolution by TFIPL for availing benefit under EDC Relief Policy (as per Clause 1.2.1), NOC without any conditions (as per Clause 8) to the Seth Group. (iv) Thereafter, the DTCP to bifurcate the Seth Group's portion of the land in accordance with law and as per the policy and/or the rules and regulations, if any. It is also observed that it will be open to the respective parties to avail the benefit of the applicable EDC Relief Policy, which may be considered by the DTCP in accordance with the applicable EDC Relief Policy, if any. 10.1 The aforesaid entire exercise shall be completed within a period of two months from the date of lifting of lockdown in the concerned area, failing which, as observed hereinabove, this Court shall proceed to pass appropriate further order/orders under the Contempt of Courts Act for non-fulfillment of the obligations by the respondents - Shri Sumit Mittal, Shri Madhur Mittal and TFIPL. As observed hereinabove, this Court has deferred to pass further orders against the contemnors - Mittal Group and TFIPL to enable them to give them further opportunity." 28. The above order of the Hon'ble Supreme Court passed in the year 2020 itself....
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....sands of allottees who have invested their hard-earned money on the basis of the licence granted by the State Government. The department shall be well advised to visit the sites of the project again and decide whether the development works are being carried out in accordance with law. The Local Commissioner of the Authority has pointed out several defects and violations. Those also should be appropriately taken into account. (b) Since the main licensee companies have dis-posed of all the lands of the project to five develop-er companies and they retain no further interest in it, either such an action on the part of the licensee company should have been stopped and prohibited well within time by the Town & Country Planning Department in the year 2008 itself, or now they have to appreciate the ground level realities and decide to bifurcate the license in favour of the five developer companies in the interest of thousands of allottees. Without this bifurcation of license nothing can move further. (c) Bifurcation of the license in favour of five devel-oper companies would logically lead to separate determination of the liabilities of each of the developer companies to....
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....and, the land measuring 14.668 acres remains in the possession of the licensee-respondent company over which the development has to be done by them in accordance with the layout plan approved by the department. Further, common facilities like schools, dispensary, community centre etc. has to be developed on the remaining land. It is noteworthy that buildings of the schools, community centres etc. are not included in the overall FAR of the colony. It is also noteworthy that the responsibility for development of the entire colony in accordance with the conditions of the license will remain a joint responsibility of the licensee and the five developer companies. A harmonious reading of the agreements made with five developer companies and the conditions of the license would unmistakable lead to a conclusion that while development of the housing colonies in the areas allocated to respective five companies should be done by the five developers companies, the infrastructure development works in the remaining area shall be executed by the licensee company itself, unless indicated otherwise in the respective agreement made with the developing companies." 33. The above clearly indicate t....
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....nt i.e. Maximal Infrastructure Pvt. Ltd. The above order dated 02.05.2019 has brought on record by compilation filed on behalf of Resolution Professional. From the above, it is clear that both before Haryana RERA Authority and Directorate of Town and Country Planning, Haryana, the Appellant has never claimed or pleaded that the development rights given to the Corporate Debtor has been cancelled and thus, the said right is possessed with the Appellant rather contrary stand was taken by the Appellant that they do not have any development rights which have transferred to five developer companies and five developer companies have to now carry on development. Why the above stand was taken by the Appellant before Directorate of Town and Country Planning, Haryana, and RERA Authority, Haryana is not far to seek. Appellant was licensee who had taken license for development of group housing residential colony where certain FSI were also earmarked to the EWS under the Haryana Development and Regulation of Urban Areas Act, 1975. Licensee have various obligation including obligation to pay various charges. Licensee have also to transfer certain lands following in the master plan for road infras....
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.... of the Corporate Debtor were declared as absconded, hence, repayment could not have been made. 37. Both the above excuses have to be rejected which is without any basis. No satisfactory proof of letter dated 17.06.2009 has been filed and as noted above, the said letter came to see light of the day only on 17.06.2024 when Affidavit was filed by the Appellant bringing the letter on record. Obligation was of owners which cannot easily be washed by the Appellant. It is also a reason that Appellant having not returned the amount to the Corporate Debtor, they have not taken stand before the authorities that Development Agreement has been cancelled. 38. Now coming to the submission of the parties regarding construction on the project. Adjudicating Authority had passed an order asking both the parties to file an Affidavit bringing on relevant materials indicating whether any construction was made after 17.06.2009? Resolution Professional filed an Affidavit brought relevant materials on record. Adjudicating Authority being satisfied and has noticed the Affidavit of the Resolution Professional that 70% of the total construction of the said project has been completed. Adjudicating Auth....
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....ricks, procurement of electric items and procurement of machinery and other miscellaneous items have been filed. These purchase, orders were issued after the alleged date of termination of agreement and the copy of these purchase orders are made available with the said affidavit. Although the Applicant as in their affidavit has submitted that no construction activity has taken place on the instance of Corporate Debtor after the termination of the agreement, the Resolution Professional has submitted that even after the alleged deemed automatic termination of the agreement, Corporate Debtor was allowed to do the construction work on the project site. The alleged termination of the Power of Attorney is also against the clause 4 of the Loan agreement which stipulates about irrevocable power of attorney. 23. In view of the above, it can be safely understood that parties have not acted in furtherance of alleged deemed termination of the agreement as provided in clause 5.2 of the Agreement." 39. Adjudicating Authority having come to the conclusion that constructions were made by the Corporate Debtor and the letter dated 17.06.2009 terminating the agreement was never acted upon....
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....ve become the owner of the property in dispute. Therefore, the development rights created in favour of the corporate debtor constitute "property" within the meaning of the expression under Section 3(27) IBC. At the cost of repetition, it must be recapitulated that the definition of the expression "property" under Section 3(27) includes "every description of interest, including present or future or vested or contingent interest arising out of or incidental to property". Since the expression "asset" in common parlance denotes "property of any kind", the bundle of rights that the corporate debtor has over the property in question would constitute "asset" within the meaning of Section 18(1)(f) and Section 25(2)(a) IBC. 53. Therefore, NCLT as well as NCLAT [Victory Iron Works Ltd. v. Jitendra Lohia, 2021 SCC OnLine NCLAT 128] were right in holding that the possession of the corporate debtor, of the property needs to be protected. This is why a direction under Regulation 30 had been issued to the local district administration." 42. When the Corporate Debtor has development rights in the subject land which is the asset of the Corporate Debtor and central to the entire insolven....
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.... 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." 43. The Hon'ble Supreme Court in the above case held following in paragraph 15.4:- "15.4. The termination was thus effected after due notice and prolonged default, and cannot be termed arbitrary or mala fide. 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." 44. From the facts of the said case, Court found that the termination of agreement prior to initiation is valid. We have found that it was the case of the Appellant throughout before the Hon'ble Supreme Court and before the RERA and Directorate of Town and Country Planning, development rights still continues with the Corporate Debtor and we having held that the development rights continue with the Corporate Debtor, the abo....
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.... decided on their own merits uninfluenced by these observations." 48. The question whether Corporate Debtor has right of trade mark 'Gloster' was held not within the domain of the Adjudicating Authority. The said judgment does not come to the aid of the Appellant in the facts of the present case where the development rights on the project land was granted by the owners and still continues with the Corporate Debtor as noted and held above. 49. We, thus, hold that the Adjudicating Authority has ample jurisdiction to consider and decide the question of development rights as claimed by the Corporate Debtor on the subject land. Cancellation of development right by letter dated 17.06.2009 has already been considered and answered in above paragraphs. Question No.(VI) 50. Adjudicating Authority having found that the development rights in favour of the Corporate Debtor continues with the Corporate Debtor, no error has been committed by the Adjudicating Authority in rejecting IA No.2729 of 2021 filed by the Appellant to exclude the subject property from the CIRP of the Corporate Debtor. The subject property i.e. project which was initiated by the Corporate Debtor was booked by hu....
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....by Pal Garden Allotee Association by filing I.A No. 1379 of 2024, before the Ld. NCLT and notice was issued vide order dated 18.03.24, and the same is pending adjudication till today. The copy of IA no.1379/2024 filed before Ld. NCLT, Delhi is annexed herewith as ANNEXURE A11. The copy of the order dated 18.03.2024 issuing notice on the said IA no.1379/2024 is annexed herewith as ANNEXURE A12. M. On 15.04.2024, the RP also challenged the memo dated 16.11.2023 issued by the DTCP in favour of PARCELA by filing I.A No. 2764 of 2024. There is no notice issued by the NCLT and the same is pending for adjudication till today. The copy of IA no.2764/2024 filed by RP before Ld. NCLT is annexed herewith as ANNEXURE A13. It is also relevant to mentioned here that the RP as well as the Association both are guilty of forum shopping. N. Accordingly, the Ld. NCLT was also made aware that the applicant is the beneficiary of the subject land and is also the rightful owner of the beneficial interest in the license to develop the project on the subject land. O. On 17.05.2024, RP challenged the transfer of beneficial right granted to PARCELA by the DTCP vide memo dated 16.11....