TaxTMI 
TaxTMI 
2026 (6) TMI 70
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.... Bench (Court II), Chandigarh in IA (IBC)/2486(CH)/2024 filed in CP(IB) No.180/Chd/Pb/2022. Application filed by the Resolution Professional being IA No.2486 of 2024 seeking a direction of eviction of the Respondent to the application who are now Appellant had been allowed by the impugned order. Company Appeal (AT) (Insolvency) No.686 of 2026 has been filed by Raman Khangura who was arrayed as Respondent No.4 to the IA No.2486 of 2024 whereas Company Appeal (AT) (Insolvency) No.801 of 2026 has been filed by Jagpal Singh Khangura who is father-in-law of Mrs. Raman Khangura. By the impugned order, Adjudicating Authority allowed the application filed by the Resolution Professional and directed the Appellant herein to vacate the premises within a period of two weeks failing which, the Resolution Professional was to seek assistance from Commissioner of Police, Ludhiana. Aggrieved by the said order, these Appeals have been filed. 2. Brief facts of the case necessary to be noticed for deciding these Appeals are:- 2.1. The Corporate Debtor- Majestic Hotels Limited owns five star hotel namely- Hotel Majestic Park Plaza situated in Ludhiana. The Corporate Debtor had taken financial fac....
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.... debtor along with family, friends, relatives to handover the vacant and peaceful possession of the corporate debtor premises. In the application, subsequently, under the orders of the Adjudicating Authority, the Resolution Professional impleaded other Respondent namely- Mrs. Raman Khangura as Respondent No.4 to the application. The application filed by the Resolution Professional was replied by Jasbir Singh Khangura, member of suspended director as well as Mrs. Raman Khangura wife of Jasbir Singh Khangura. Mrs. Raman Khangura in its reply claimed right to continue in the occupation of the 9th floor on the basis of MoU dated 05.11.2015 entered with the Corporate Debtor and Arbitration Award dated 19.03.2019 between Mrs. Raman Khangura and the Corporate Debtor. Resolution Professional filed its rejoinder-affidavit to the reply submitted by Mrs. Raman Khangura and it is pleaded that in the record of the Corporate Debtor, MoU and Arbitration Agreement are not available nor the said has been disclosed in the financial statement of the Corporate Debtor. Mrs. Raman Khangura being director of the Corporate Debtor was related party and required to be disclosed under the provisions of Secti....
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....e intent as per the provisions of the IBC is that if the Corporate Debtor has failed to meet its obligations in payment to the Creditors, then following the process as provided in the Code, management of the CD is to be handed over to a third person who could resolve the condition of insolvency of the said Corporate Debtor. Accordingly, R1 and R4 either individually or jointly cannot claim to be treated at par with third party creditors as they are the ones responsible for the failure of the CD and bringing it to the condition of insolvency. Their dues, if any, cannot get priority over other stakeholders such as Financial Creditors and other Creditors and therefore, they cannot be permitted to continue the possession over the properties of the CD on the strength of the said alleged agreements/purported Memorandum granting the occupancy right to R4. If they are allowed to continue their possession, then that would tantamount giving her the priority over other stakeholders which would go against very intent of the Code. 13. Considering all these facts, we find that the Respondent Nos.1, 3 and 4 are illegally occupying the premises of the CD and are interfering in the process....
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....to pay compensation amounting to Rs. 49,98,02,186/-. Memorandum granted occupancy rights and the compensation amount was to be paid by 05.11.2018. The MoU further provided that in case Corporate Debtor failed to pay the compensation amount in full within the agreed period then as per clause 5.4 Rs. 10 Crore out of the compensation amount would be treated as commuted and shall be deemed to have been paid as an advance payment made by the Appellant for continued occupancy of the premises i.e. 9th floor of the hotel premises. Dispute arose between the parties regarding memorandum and matter was referred to an arbitrator who gave an award on 19.03.2019 holding that the Corporate Debtor has defaulted in its obligation to pay compensation. Appellant- Mrs. Raman Khangura is entitled to continue occupying the premises in question. It is submitted by Learned Counsel that Mrs. Raman Khangura has obtained occupancy rights by virtue of MoU dated 05.11.2015 and in view of the Arbitral Award dated 19.03.2019, the right of appellant to continue to reside in the premises 9th floor along with his family members and friends cannot be disputed. Occupation of 9th floor by Mrs. Raman Khangura and her f....
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....tor report being related party transaction. There is no mention in the financial statement of 2015-2016, whereas it was executed when Mrs. Raman Khangura was a director and 11.05% shareholder and her husband was 28.81% shareholder and Managing Director of the Corporate Debtor. Being related party transaction it required express approval of the shareholders with strict disclosure under Section 188 of the Companies Act. The document which has been received by the Resolution Professional does not contain the MoU or the Arbitral Award. Absence of disclosure about the MoU and Arbitral Award which was related party transaction makes the whole things suspicious and unbelievable. The document has surfaced only when application was filed by the Resolution Professional in the reply filed by Mrs. Raman Khangura. It is submitted that in the 1st CoC meeting, Jasbir Singh Khangura husband of Mrs. Raman Khangura was present as Suspended Director when he was enquired about the possession of 9th floor, he was ignorant of any contractual arrangement rather he stated that the suspended directors are occupying as perquisite of the office. MoU is neither registered document under the Registration Act, ....
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....debtor has ownership rights has to be taken in possession. The CoC has authorised the Resolution Professional to take appropriate action. Resolution Professional has issued eviction notice and thereafter filed an application. Alleged MoU and Arbitral Award are collusive unenforceable and cannot defeat the IBC. Arbitral award has never been enforced, no execution proceedings were ever initiated and no right of possession ever crystallized. Adjudicating Authority after considering the submissions of both the parties in detail have issued direction to the Appellant to vacate the premises which is in accordance with law. 10. We have heard Learned Counsel for the parties and perused the record. 11. Learned Counsel appearing for Mrs. Raman Khangura has contended that the immovable property of Mrs. Raman Khangura situated in Chandigarh was mortgaged for the loan obtained by the corporate debtor from Punjab & Sind Bank. Punjab & Sind Bank has auctioned the House No.237, Sector 9C, Chandigarh on 07.09.2015 for Rs. 43.69 Crores. Financial assistance provided was of Rs. 19.15 Crore. It is on the record that access amount received from sale of the mortgaged assets of Mrs. Raman Khangura ....
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....upancy Agreement is neither registered nor adequately stamped. In paragraph 6, following was stated:- "6. At the outset, the Applicant questions the veracity and authenticity of the Occupancy Agreement along with the Addendum as they are not part of the statutory records, books of account, or official documents of the Corporate Debtor. Similarly, that Arbitral Award is not part of the records of the Corporate Debtor either. The Occupancy Agreement is neither registered under the Registration Act, 1908 nor adequately stamped as required by the Indian Stamp Act, 1899 and therefore, it cannot be relied upon to establish or enforce any purported rights accruing to the Respondents. Further, the Arbitral Award is also not sufficiently stamped under the Indian Stamp Act, 1899 and therefore, cannot be relied upon and it is liable to be impounded." 13. The Resolution Professional has also referred to and relied on 1st CoC meeting held on 02.08.2024. In the 1st CoC meeting, the husband of Mrs. Raman Khangura, Jasbir Singh Khangura who was Managing Director of the Corporate Debtor was present. It is relevant to notice the minutes of the 1st CoC meeting which is part of the applica....
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.... contested and emphasized that this is not permissible since the company is a separate legal entity from its owners and assets of the company are not the assets of the promoters and if any property is being utilized or any transactions are being done with the related parties, it should be completely on an arm's length basis. Members representing UVARC requested IRP to check what kind of consideration is being paid with respect to the premises occupied by the suspended director/their relatives. Members representing UVARC also inquired from IRP whether in terms ofmBI regulations is it permissible to not take over the assets of the CD which are in possession of Suspended Directors. IRP responded that in terms of provisions of Section 18 of me, it is the duty of an IRP to take control and custody of any asset over which the corporate debtor has ownership rights. To this member representing UVARC instructed and directed the IRP that since it is not permissible as per law, the IRP shall initiate appropriate & adequate steps for vacating the premises which is in occupation of family and friends of CD. Mr. Khangura further clarified & submitted that the occupation on ....
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....a for vacating the premises of Corporate Debtor. The said notice was discussed and deliberated in the meeting in detail. The CoC member asked the RP, to appraise committee about the areas which is still not being handed over to the RP, the Resolution Professional informed the committee that as per his knowledge a saloon at the 2nd floor, thirteen shops at the 3rd floor, which is the main lobby area, coffee shop and front office is there apart from other amenities, and room Nos. 1802 to 1806 at the 8th floor and all rooms at the 9th floor of Majestic Park Plaza, Bhai Bala Chowk Ferozpur Road, Ludhiana -141002 are in unauthorised and illegal occupation Mr. Jasbir Singh Khangura and his family/friends/relatives/acquaintances. Further, the Resolution Professional apprised the committee that said 5 days' notice expired on 10.10.2024. However, neither any response has been received from Mr. Jasbir Singh Khangura in respect of the said legal notice nor he has vacated the premises of the Corporate Debtor in his occupation. Member representing UVARC were displeased with the conduct of Mr. Jasbir Singh Khangura and enquired from Mr. Kewal Krishan Sharma if he is aware a....
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....filed with a prayer to appoint independent valuer, suspend the Committee of Creditors and resolution proceedings; restrain the RP to continue the resolution process and initiate criminal prosecution against the respondents." 16. The above facts clearly throw a considerable doubt over contemporaneous existence of the MoU and the Arbitral Award. It is also the view expressed by the Adjudicating Authority. Adjudicating Authority has rightly observed that "We fail to understand that how there could have arisen a dispute as regards to the terms and conditions whereby occupancy right is stated to have been given to R4 through the said alleged agreement/purported memorandum dated 05.11.2015 and more so, when her husband happens to be the Director of the CD." Adjudicating Authority, however, has observed that "the issue before us is not as regard to whether is not as regards to whether the documents are genuine or fabricated, rather the issue is as to whether following the initiation of CIRP, the R1 and R4 and/or any other family members could be allowed to continue with their possession of the assets of the CD under the provisions of the Code." In paragraph 10 of the impugned order, th....
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....Punjab & Sind Bank on 07.09.2015 for an amount of Rs. 43,69,00,000/-. Mrs. Raman Khangura also received an amount of Rs. 14,20,87,814/- that was balance of clearance of liability. As per MoU, the corporate debtor decided to grant compensation to Mrs. Raman Khangura to the extent of Rs. 49,98,02,186/- which compensation amount to be paid within three years i.e. upto 05.11.2018. We have already noticed Clause 5.4 which deals with 'default by first party of its obligations under the agreement'. Thus, after 05.11.2018, the right of occupation is being claimed by Mrs. Raman Khangura on basis of alleged amount commuted sum of Rs. 10 Crores which was treated as an advance. 18. The occupancy rights in any immovable property can be claimed by means of a lease/license in the property. The Transfer of Property Act provides that the lease which is a lease for a period of more than a year can be only by registered agreement. The MoU being unregistered agreement, no right of occupancy can be claimed by an un-registered document. No right of occupation in the immovable property can be claimed and further after commencement of the CIRP it is the obligation of the Resolution Professional to take....
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....ove case, Corporate Debtor's assets were occupied by Classic Marble who claimed that he is to continue in possession as per permission and there being dues on the corporate debtor, Appellant was entitled to continue till dues are cleared which was the case set up by the Appellant. This Tribunal held that the Resolution Professional could have taken steps to take possession of the assets belonging to the corporate debtor. In paragraphs 15, 16 & 17, following was held:- "15. Counsel for the Respondent has relied on judgment of this Tribunal in "M/s. Jhanvi Rajpal Automotive Pvt. Ltd. vs. R.P. of Rajpal Abhikaran Pvt. Ltd. Company Appeal (AT) (Ins.) No.1417 of 2022" decided on 05.01.2023. In the said judgment, issue of similar nature came for consideration. One of the questions which was framed by this Tribunal in paragraph 8(i) was 'whether the Adjudicating Authority had jurisdiction to entertain IA filed by the RP seeking direction to the Appellant to handover the possession of the premises which premises was owned by the Corporate Debtor?'. Question 8(i) is as follows:- "i. Whether the Adjudicating Authority had jurisdiction to entertain I.A. No. 200 of 20....
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....iated by the order of the Bombay High Court dated 05.10.2016 and liquidator was directed to take possession of the assets by the High Court and liquidator proceeded to premises on 04.06.2011 to take possession and symbolic possession was taken. After initiation of CIRP when the Resolution Professional has issued two notices to the Appellant to vacate, any permission to occupy the premises shall not continue and shall come to an end. Insofar as reliance of the Appellant on various registration including registration under MTNL, GST registration, Insurance Policy, shop registration are concerned, they were registrations obtained by the Appellant to carry out its business and the said registration in no manner help the Appellant to prove any kind of right in the premises. Registration Certificate dated 01.01.2017 under Maharashtra Shop and Establishment Act 2017 was filed by the Appellant before the Bombay High Court. The said registration certificate in paragraph 3 clearly provided as follows:-......" 22. The above judgment of this Tribunal was affirmed by the Hon'ble Supreme Court in Civil Appeal No.4499 of 2026 decided on 24.04.2026 by affirming the judgment and granting three m....
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....pen for Mrs. Raman Khangura to file a claim in the CIRP but that cannot be a ground to occupy the premises of the CIRP on suppose ground that her commuted sum of Rs. 10 Crore is to be exhausted by deducting amount of Rs. 3 lakhs per month. The hotel is mortgaged to the secured creditors and no encumbrances on the assets have been disclosed to the secured creditor and in any other documents which clearly belies the case set up by Mrs. Raman Khangura of obtaining occupancy right from the corporate debtor. 26. Much reliance has been placed by the Learned Counsel for the Appellant on Arbitration Award dated 19.03.2019. Adjudicating Authority has rightly expressed its doubt about any dispute between Mrs. Raman Khangura and the corporate debtor which could have given rise to the arbitration proceeding. Arbitration award is not part of the record of the corporate debtor and for the first time has been filed in the reply filed by Mrs. Raman Khangura to the IA filed by the Resolution Professional. Husband of Mrs. Raman Khangura in the 1st meeting of the CoC held on 02.08.2024 has not even disclosed any such claim of Mrs. Raman Khangura his wife to occupy the premises rather he stated bef....