TaxTMI 
TaxTMI 
2026 (10) TMI 455
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....mself to be the owner of 8.137 acres of land of Casa Espana Phase-II Project requesting to grant the following prayers: "In light of the facts and law as stated in the present application, this Hon'ble Tribunal may kindly be pleased to: (a) Allow the present application and permit the Applicant to intervene in the captioned proceedings, and upon such intervention, be pleased to grant the directions and reliefs sought by the Applicant/Intervenor as set out herein below: (i) Exclude the property of 8.137 acres of CASA Espana Phase II belonging to CASA Espana Phase II from the asset of the Corporate Debtor; (ii) Exclude the project CASA Espana Phase II from the corporate insolvency resolution process; (iii) Set aside the order passed by the Hon'ble NCLT; (iv) Remand the matter to the Learned Adjudicating Authority for fresh consideration/review, with appropriate directions to ensure adequate safeguards and protection of the rights and interests of the land in question; (v) Direct restoration of the original title of the land in favour of the Applicant, as held prior to the passing of the impugned order; (b) Pass a....
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....and terminated by the landowner long before the initiation of CIRP. 6. It is vehemently submitted that the land owner had entered into a JDA dated 21.11.2017 for proposed development of Phase-II of Project Casa Espana whereby the CD was given development rights over the subject land admeasuring 8.137 acres and the landowner also executed a power of attorney in favour of the CD, however when nothing was done over the subject land for over 6 years land owner revoked JDA vide letter dated 24.03.2023 and the POA was also cancelled by a registered cancellation deed of date 04.05.2023 and none of these documents have been challenged by the CD so far before any competent court. 7. It is vehemently submitted that the Suspended Board of CD has acknowledged the termination of the JDA and POA executed by the land owner and has also given NOC to the land owner to develop the land with the help of any other entity. 8. It is further submitted that it is an admitted fact that not a single booking of any allottee has been made with regard to the land owned by the land owner and it is not a case where any third party rights has been created. 9. It is further submitted that the CD in utt....
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.... 15. It is further submitted that an effort is being made by the FC to connect the CIRP of the CD with its security interest, however both are separate proceedings and the FC has already instituted DRT proceedings for the recovery of the money allegedly advanced to the CD by creating a charge over the land of the applicant however, the land in any case may not be treated as the property or assets of the CD when the JDA and POA has been cancelled by the applicant about two years prior to the initiation of the CIRP and when the NOC has also been granted by the CD to the applicant to develop his land with any other developer. Thus there was no occasion for the IRP to have moved any application before this Appellate Tribunal for obtaining interim stay over the construction activities being undertaken by the applicant. 16. It is further submitted that against the order of the status quo passed by this appellate Tribunal the applicant immediately approached the Hon'ble Supreme Court and by passing the order dated 31.08.2026, Hon'ble Supreme Court directed that the application filed by applicants i.e. IA No. 3274-3275 of 2026 and by IRP IA No. 5865 of 2026 shall be taken up and dispos....
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....Ltd vs. State of Maharashtra and Ors. (2025) ibclaw.in 1780 HC (xi) Uttar Pradesh Housing and Development Board vs. K.S.N Buildwell Pvt. Ltd. and Anr. (2026) SCC OnLine NCLAT 942. (xii) Krishnadevi Malchand Kamathia and Ors. vs. Bombay Environmental Action Group and Ors. (2011) 3 SCC 363 (xiii) I.S Sikandar vs. K. Subramani and Ors. (2013) 15 SCC 27 (xiv) Sangita Sinha vs. Bhawana Bhardwaj and Ors. (2025) 11 SCC 98 (xv) Chairman of SBI and Anr. vs. M.J. James. (2022) 2 SCC 301 (xvi) DLF Home Developers Ltd. vs. Shipra Estate Ltd. and Ors. (2021) SCC OnLine Del 4902 (xvii) Her Highness Maharani Shantidevi P. Gaikwad vs. Savjibhai Haribhai Patel and ORs. (2001) 5 SCC 101 (xviii) Victory Iron Works Ltd. vs. Jitrendra Lohia and Anr.(2023) 7 SCC 227. (xix)KS Manjunath and Ors. vs. Moorasavirappa and Ors. 2025 SCC OnLine SC 2378 (xx) Brajesh Kumar Tripathi and Anr. vs. Hasti Mal Kachhara and Ors. 2026 SCC OnLIne NCLAT 931 (xxi) Padia Timber Company Pvt. Ltd. vs. Board of Trustees of Vishakapatnam. (2021) 3 SCC 24. 22. It is submitted that as held in Krishnadevi Malchand Kamathia and Ors. Vs Bomba....
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....eree/party never actually revoked the contract but the case at hand is to be distinguished as there was no such conditional element in the present termination. 27. Shri Arun Kathpalia, Ld. Sr. Counsel appearing for the financial creditor/IDBI Trusteeship Services Ltd. and Ld. Counsel for the IRP submits that there is no merits in the submissions made by Ld. Counsel for the applicant-Rajinder Singh as the JDA entered between the Rajinder Singh and CD/Infrabuild (CD) could not be terminated as the same was non-determinable and the power of attorney which was executed by the applicant was also irrevocable and therefore both these agreements could not be terminated or revoked unilaterally. 28. Ld. Sr. Counsel have drawn our attention towards the clauses 2.1, 10.1.7, 10.1.10 of JDA and submits that these clauses clearly set out the grant of development rights as well as authority under the power of attorney as irrevocable and also that the disputes if any shall not affect the development on the land. 29. It is further submitted that clause 12 of the JDA clearly states that owner shall not revoke the development rights so granted to the developer nor shall it be entitled to term....
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....nctioned on 02.05.2022 and therefore on 07.06.2022 the land owner and CD executed another agreement in the nature of an addendum to the JDA, acknowledging that the necessary permission and approvals for carrying out constructions were received on 15.02.2022 and 22.05.2022 and therefore the five-year period for construction was required to be reckoned from 2022 and the same will extend up to 07.06.2026. However, in less than a year after execution of this agreement the land owner terminated the JDA, in May 2023 and therefore the whole narrative set up by the land owner is ex-facie false. 34. It is forcefully submitted that the CD has never consented or accepted the termination of JDA and the reliance of the land owner on three letters dated 24.03.2023, 24.05.2023 and 26.05.2023 to infer the termination of the JDA and acceptance of it by the CD is wrong. The letter dated 24.03.2023 was replied by the CD by letter 06.04.2023 wherein it is categorically stated that the CD is committed to complete the entire project therefore the termination was not accepted by the CD. 35. It is also submitted that in the letter dated 24.05.2023 there is no indication either of acceptance of termi....
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.... that vide order dated 04.03.2025, passed by the Ld. Adjudicating Authority in CP IB No. 555 of 2023 the CD i.e. ATS Infrabuild Pvt. Ltd. was inducted into the CIRP on an application filed by the IDBI Trusteeship Services Pvt. Ltd. under Section 7 of the IBC. In the said petition land owner filed an intervention application being IP No. 26 of 2024, however by passing a separate order of date 04.03.2025 this application was dismissed on the ground that whether a particular assets form Part of the CD estate is an issue that can be examined at the appropriate stage, if necessary, during CIRP by IRP/RP and CoC however at the stage of admission of Section 7 petition the adjudicating authority has no role in determining whether a particular asset belongs to the CD or not. 40. The Suspended Director of the CD challenged the admission order of CIRP initiation before this Appellate Tribunal by filing CA (AT) (Ins) No. 518 of 2025 and by passing order dated 27.03.2025 this Appellate Tribunal directed that in the facts of present case no further steps shall be taken in pursuance of the impugned order, however, the IRP shall see that CD is run as going concern. 41. During the pendency of....
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....(Shiwalik) over 17 acres of land owned by Shiwalik for development of Phase-I and on 24.07.2014 a deed of full and final settlement was executed between Sardara Singh, Balbir Singh and Others as first party and Shiwalik as second party and Evergreen Infrastructure Pvt. Ltd. as third party/confirming party. The opening part of this agreement in recital 2 states that as only 25 acres project is got approved this settlement deed is only and primarily between Shri Sardara Singh (father of Applicant-Rajinder Singh) and Shiwalik with regard to land admeasuring 8 acres (owned by Sardara Singh) and 17 acres (owned by Shiwalik) and all other except Sardara Singh were excluded from any liability benefit claim or interest accruing from that agreement. Relevant clauses of this agreement are reproduced as under: "3. AND WHEREAS all requisite approvals have been obtained, and the residential project has been launched on the said proposed land of 17 acres owned by the Second party with the name of ATS-Casa Espana (hereinafter referred to as Said project). Based upon this, and receipt of CLU the second party had entered into a Collaboration agreement with ATS Infrabuild Private Limited, 7....
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....ement agreement also provides in Annexure B, C and D the amount which will be paid and apartments allotted to the first party i.e. Sardara Singh. 47. It is also reflected that an addendum to the above stated settlement deed was also executed between Shiwalik, Rajinder Singh and Sardara Singh on 21.11.2017, which provides that the parties have arrived at an understanding and entered into this addendum which provides that Shiwalik being the license holder is raising a group housing Casa Espana Project on 25 acres of land and consequent to collaboration agreement dated 20.06.2011 and pooling of approximately 8 acres of land by Sardara Singh would extend full support and allow use of license for the development of 8 acres of land pooled by Rajinder Singh being the new owner and he (Rajinder Singh) will get it developed by the same builder from whom the land of first party has been developed i.e. ATS Infrabuild Pvt. Ltd. and the first party Shiwalik agrees to allow the developer (CD) to use the license which is in the name of Shiwalik, only after the developer/ CD signs the agreement with Shiwalik. The terms and conditions of using license and other conditions were also stated in thi....
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....ferred to as the "Development Rights" 3. DEVELOPMENT RIGHTS 3.1 The Owner has under this Agreement granted the entire Development Rights to the Developer. The Developer may undertake the development of the Project over the Project Land either by itself or through competent contractors, including these appointed as the Project Team, and subdivide the work or appoint sub-contractors as it may deem fit and proper. 3.2 The Developer shall be entitled to do all things, deeds and matters pertaining to all the development activities on the Project Land and develop the Project Land in any manner it may deem fit and proper and for that purpose approach any Governmental Authority' or any other body or in respect of any acts, deeds, matters and things which may be done or incurred by the Developer as also to sign all letters, applications, agreements, documents, court proceedings, affidavits, and such other papers as may be from time to time required in this behalf. The Developer shall also be entitled to appoint the Project Team of their choice, and also apply for quotas, of all controlled building material such as cement, steel etc. to the relevant authorities....
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....licaiion(s), powers of attorney that may be required by the Developer for undertaking the Project. 10 OBLIGATION OF THE PARTIES 10.1.2 The Owner has handed over the peaceful and vacant possession of the Project Land to the Developer 10.1.7 The Owner shall upon execution of the POA, nor do any act or deed that may have the effect of cancelling or revoking the same, or in any manner prejudicing or affecting the power/authority vested in the Developer. 12 TERMINATION 12.1 In the event of breach of any terms and conditions of this Agreement by any Party, the other Party shall be entitled to seek specific performance of this Agreement against the defaulting Party and neither Party shall be entitled to terminate this Agreement. 12.2 The Parties recognize and acknowledge that the Developer will be investing substantial sums of money and has entered into this Agreement on the specific understanding that the Project Land Owner shall not revoke the Development Rights so granted to the Developer hereunder nor shall it be entitled to terminate this Agreement for any reason whatsoever. Nothing shall prevent the Parties from enforcing their r....
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....to as the "Developer" which expression shall, unless repugnant to the context, be deemed to include its successors and permitted assigns) in terms of which the entire Development Rights over Schedule Land has been, granted exclusively to the Developer. The Schedule Land is the Project Land (as defined in the Agreement). C. We recognize that the Developer has invested substantial money for the development of the Project on the Schedule Land contemplated under and requires enabling powers to perform its functions and/or obligations under the Agreement. D. Accordingly, I am desirous of executing in favour of the Developer this irrevocable power of attorney in consideration of the obligations undertaken by the Developer under the Agreement authorizing the Developer to deal with the Schedule Land and exercise all rights in respect thereof which we hereby do in the manner hereinafter appearing. 9. To develop the Schedule Land on such terms and conditions as may be deemed fit and to take steps in this regard to alienate, encumber, convey, sell, exploit, transfer, mortgage, charge, lease, license or otherwise deal with the building/ units therein together with pr....
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....uation of the Development Agreement dated 21.11.2017 and the terms thereof shall remain same and binding on the parties herein, except in so far they have been modified herein. B. Words defined in the Development Agreement shall have the same meaning as used in present Agreement. C. Unless agreed between the parties in writing, this Agreement shall remain in force indefinitely until such time as the termination procedures in the Development Agreement are invoked, upon which the Agreement shall cease. Now, the Owner has transferred his entire share of 35% saleable area referred above to the Developer m/s ATS Infrabuild Pvt. Ltd. on the mutually agreed below mentioned terms and conditions: - 1.1 In consideration of transfer of 35% share saleable area by Owner to the Developer, amount payable to the Owner Sh. Rajinder Singh by Developer M/s ATS Infrabuild Pvt. Ltd. shall be as follows: The guaranteed landowner's share of Rs. 150 Crores shall remain unaffected irrespective of the sale prices at different rates and the same shall be supplemented by incremental share, as projected in the table above. 1.4 The planned construction t....
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.... the land owner will not affect the development rights owned by the CD and since the development rights are the assets of the CD the RP is having right to take possession of this land under Section 18 (2) of the IBC. 53. It is also the case of the financial creditor and IRP that CIRP has been stayed by this Appellate Tribunal and RP could not take possession of the land himself and therefore to stop the construction activities being illegally done by the land owner an application was moved before this Appellate Tribunal whereon a status quo order has been passed. Similar application was also moved before the Ld. Adjudicating Authority. 54. It is also the case of the FC that a fresh agreement was executed between CD and land owner on 07.06.2022 whereby the land owner transferred his entire share of 35% saleable area and guarantee share of land owner was stipulated as 150 Crore and now the land owner now could only claim this amount in the CIRP of the CD. 55. It is also the case of the RP and FC that by executing agreement dated 07.06.2022 the construction time frame was stipulated as four years and six months with a grace period of three more months and in case of delay the....
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....e agreement and damages can be levied against the defaulting parties but neither party shall be entitled to terminate the agreement. Significantly in clause 19 of the JDA time period for completion of the project was stipulated as 60 months from the date of sanction of building plans and from obtaining other applicable approvals. 61. Thus it was clearly stipulated that the completion of work would be done within 60 months with a further grace period of 6 months, but this period is to be reckoned from the date of sanction of building plans and other approvals. 62. Ld. Counsel for the FC and RP has drawn our attention towards the agreement dated 07.06.2022 executed between land owner Rajinder Singh and M/s ATS Infrabuild Pvt. Ltd. (CD), which has been brought on record by none other than the land owner himself with the reply filed in IA No. 5865 of 2026 and the initial two recitals of this agreement stated in paragraph no. 50 of this judgment would evidently show that on 24.08.2020 the license of Shiwalik with regard to the subject land was approved by the competent authority and the revised lay out plan was also approved by the competent authority on 15.02.2022. Thus it is evi....
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....uld not be terminated by any party to these agreements. Ld. Counsel for the F.C. has relied on K S Manjunath (supra) on the issue as to whether an irrevocable agreement could be terminated. 68. In the facts of Manjunath (supra) the original vendors executed an unregistered Agreement to Sell (ATS) on 28 April 2000 for 354 acres of land in Basavanakoppa for Rs.26,95,501/- receiving earnest money of Rs.2,00,000/-and further payments totalling Rs.8,12,500. A related partition suit filed in 2001 led to a status-quo order that delayed completion; the vendees completed the required tenure conversion and tenant relocation, but the vendors later issued a termination notice in March 2003 citing the pending litigation and a vendor's death. After the 2001 suit was withdrawn in 2007, the vendors sold the land to subsequent purchasers for Rs.71,00,000/-prompting the original vendees to file a suit for specific performance. The Trial Court held that the ATS and payment of earnest money were proved, the vendees were ready and willing to perform, and the suit was within limitation and maintainable without seeking cancellation of the later sale deeds. However, it found the subsequent purchasers t....
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....ively, while using the phrase "may sue" merely give an option to any person to have the contract rescinded or adjudged as void or voidable; (iv). Once the alleged termination of a non-determinable agreement in question is found to be not for bona fide reasons and being done in a unilateral manner on part of the defendant, it cannot be said that any declaration challenging the alleged termination was required on part of plaintiff; (v). If a contract itself gives no right to unilaterally terminate the contract, or such right has been waived, and a party still terminates the contract unilaterally then that termination would amount to a breach by reputation, and the non-terminating party can directly seek specific performance without first seeking a declaration; and (vi). In the event it is found that the termination of agreement to sell by the defendant was not valid, then such an agreement to sell will remain subsisting and executable". 62. Since in principle unilateral termination of the contract is impermissible except where the agreement is determinable within the meaning of Section 14 of Act of 1963, it also becomes necessary, at this juncture,....
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....n our considered opinion the land owner could not unilaterally terminate the JDA in the year 2023. 71. Now we peruse the communications which have taken place between the land owner and the CD, on which much emphasize has been laid by Ld. Counsel for the land owner. 72. It was on 24.03.2023, land owner, according to him, has revoked JDA by allegedly sending a letter by post. We notice that the grievance which has been shown therein is not with regard to the non-construction of work. In fact, the ground taken therein is with regard to the dispute pertaining to payment and creation of charge on the land of the land owner. A reply to this letter has been sent by the CD wherein the termination has not been consented and it is informed that project loan is Rs. 145.85 Crore and also that they are launching Casa Espana Project -II soon. Thereafter on 04.05.2023, the POA appears to have been cancelled by registered deed. On 24.05.2023, it is replied by the CD that out of the loan taken on the project Rs. 50 Crore loan is apportionable to the land parcel owned by the land owner and also that it shall be appreciable if this amount is returned to NBFC by the land owner on behalf of the ....
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....ge has drawn our attention to Memorandum No. 17/17/011-511G2/1640 of date 18.06.2009 issued by the Govt. of Punjab which is reproduced as under: Government of Punjab Department of Housing and Urban Development (Housing Branch-II) To The Chief Town Planner, Punjab, Chandigarh Memo No. 17/17/01-511G2/1640 Dated: 18-06-2009 Subject: Minimum area requirement for setting of Residential/Commercial colony. Ref: Please refer to this office previous Memo No. 17/17/01-511G2/7655 dated 19-09-2007. In partial modification of policy of minimum requirement for setting Residential/Commercial colonies issued vide memos referred to above, henceforth, the following norms shall be followed: 1) In GMADA area, High Potential Zone category 1 and 2 and Medium Potential Zone category 1 and 2 where zonal/sector plan has been notified, the minimum area for residential colony shall be 25 acres provided that such chunk of land is compact and contiguous, of regular shape and having proper connectivity (existing and proposed) to civic amenities. 2) In Low Potential Zone category 1 & 2 the minimum area for resident....
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....ted by the land owner Rajinder Singh by creation of charge of the FC which is being disputed by the land owner. However as of now in our considered opinion subject property could not be excluded from the CIRP and is required to be preserved by directing the parties to maintain status quo till the disposal of this appeal. We assure that if necessary cooperation is extended by the parties we would be able to dispose of the appeal itself at the earliest. 82. In view of above Mr. Rajinder Singh is permitted to intervene in this appeal. Ld. Counsel for the appellant is directed to provide Ld. Counsel for the intervenor copy of memo of appeal along with all enclosures today itself. The intervenor thereafter may file any response within 7 days from today with an advance copy to the appellant who may also file rejoinder within 5 days thereafter. 83. Ld. Counsel for the Appellant shall also file the amended memo of parties incorporating the intervenor as Respondent in CA (AT) (Ins) No. 518 of 2025. 84. In the meantime, the parties including their agents/servants shall maintain status quo with regard to the subject land. 85. Both the applications are disposed of in above terms. ....
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....egislations relevant and in vogue, post settlement with the existing dues of NBFC/ lender. We admit and undertake that except for the amount mentioned in letter no 1/52023 dated on 24"" May 2023, we have no claim on the land and the project thereon that was due to be implemented on the land of your good - self. This letter of confirmation is sufficient for you to proceed for a deal by yourself or in an association with any third party. This letter of confirmation is self-explanatory, expressing our gesture of sincerity towards you and it may be taken as sufficient as our endorsement and confirmation of our acceptance of your arrangements with any other third party for the same project. We are hereby giving consent cum confirmation of post settlement with the NBFC/Lender as per letter no.1/52023 dated 24" May 2023 our relinquishing our right that existed in any whichever way on the project proposed on your owned land giving irrevocable NOC for your entering into a deal with third party or implementing the project directly by yourself: Date: Glaubte Thanks & Regards Yours Sincerely (Geetamber Anand) Director ATS Infrabuild Pvt. Ltd. Allested Reinder days. Documen....