Gautam Solar Pvt. Ltd. & Anr vs Bhoopesh Gupta & Ors

Gautam Solar Pvt. Ltd. & Anr. ...Appellant(s)

Versus

Bhoopesh Gupta & Ors. ...Respondent(s) Present: For Appellant : Mr. Dhruv Dewan, Ms. Sanjukta Roy, Mr. Dhruv Sethi, Advocates. For Respondents : Mr. Abhishek Devgan, Mr. Vishal Hiranat, Advocates for R-1. Mr. Ashish Rana, Mr. Harshit Garg, Advocates for R- 2 & 3.

ORDER

(Hybrid Mode) [Per: Justice Rakesh Kumar Jain (Oral) 06.08.2025: This appeal is directed against the order dated

10.10.2024 in which the Tribunal at Allahabad has passed certain

directions. The application bearing IA No. 455 of 2024 is filed by Respondent

No. 2 and 3 in CP (IB) No. 75/ALD/2019 which had already been disposed

of, having been resolved by Respondent No. 3 by taking over Respondent No.

2. The prayers made in the application are as under:

"(i) Allow the instant Application;

(ii) Direct the Respondent Nos. 1 to 3 to execute/continue a long term lease qua the properties described as "Bharuch Plant" and "Haridwar Plant" as described at Para No.9 in favour of the successful Resolution Applicant, or alternately direct the Respondent Nos. 1 to 3 to sell/transfer the said properties to the successful Resolution Applicant; and

(iii) Direct the Chief Judicial Magistrate to take possession of the property of the Corporate Debtor described as "Pantnagar Premises", situated at Plot Nos. 24 & 29, Sector-2, Integrated Industrial Estate SIDCUL, Pant Nagar, Distt. - Udham Singh Nagar, Uttarakhan- 263153; and

(iv) Pass any other or further or consequential order(s) as this Hon'ble Tribunal may deem fit in the facts and circumstances of the instant case".

2. The appellants are the alleged lessee of Respondent No. 2 of the

Haridwar Property by virtue of two lease deeds dated 15.02.2024. Counsel

for the appellant has submitted that both the lessees are carrying on their

business in the manufacturing, trading of solar panels, EPC of solar energy

devices and parts there off as solar street lighting systems, solar home

lighting systems, solar water pumping systems, steel structure fabrication,

galvanizing for use in solar energy devices and it's all parts & accessories.

3. Counsel for the appellant has submitted that in the application

bearing IA No. 455 of 2024, Respondent No. 2 and 3 did not implead the

appellant as party though they are in possession of the premises in question

being lessee, on the strength of the lease deed dated 15.02.2024.

4. It is submitted that the Tribunal, while passing the impugned order

has made the following observations:

"5. After arguing for some time, Ld. Counsels representing the parties are at ad idem that there is no dispute with respect to the title of the land which belongs to the M/s Himalayan Minerals Waters Pvt. Ltd. which is now being taken care of by the RP. There is also no dispute with respect to some of the buildings/construction having been made by the erstwhile M/s Fedders Electric & Engineering Ltd./SRA during the currency of the successive lease deed executed inter se between the parties, however the dispute only remains as to the quantum and the measurement of the building constructed thereon. However, there is also no dispute with respect to the plants and equipments installed therein.

6. In order to resolve the issue, the Ld. Counsel representing the Parties are also at ad-idem that an on the spot inspection may be carried out by way of appointment of a Mediator/Local Commissioner under whose guidance and supervision the materials and belongings of the Applicant may be taken away. The RP would provide all necessary support to the Mediator/Local Commissioner to facilitate removal of such material of building constructed by M/s Fedders Electric & Engineering Ltd. and plants and machinery inside the building belonging to it, by the Applicant expeditiously within a period of 30 days. The honorarium and the other incidental expenses on travelling, stay, food etc. during stay at site, of the Mediator/Local Commissioner would be paid by the Applicant. The videography of the place will also be got done by the Mediator/Local Commissioner for which expenses will be borne by the Applicant. A written report along with such photography and the findings on materials, plants and equipments/machinery removed from the said building structure as found to be belonging to Applicant, would be submitted by the Mediator/Local Commissioner. For this work, we appoint Dr. Binod Kumar Sinha (Former Member Technical, NCLT) as Mediator contact no.9868367189 & e-mail ID bscita32@gmail.com, fixing his honorarium as Rs.1.0 lac".

5. Counsel for the appellant has submitted that since the impugned

order was directly effecting the possession of the appellants, therefore, the

present appeal has been filed in which notice was issued on 24.10.2024 and

it was directed by this court that in the meantime, "in pursuance of the

Impugned Order, Plants and Equipment may not be removed and demolition

be carried on the subject land". Order dated 24.10.2024 is reproduced as

under:

"Learned Counsel for the Appellant submits that the Appellant was granted a Lease Deed which are at Pages 73 & 77 and Appellants have his goods, in the meantime the lessor of the Appellant has filed an Application being I.A. 455/2024 before the Adjudicating Authority (National Company Law Tribunal, Allahabad Bench, Prayagraj) in C.P. (IB) No. 75/ALD/2019 against the RP of Himalayan, Respondent No. 1 praying certain directions restraining the Respondent No. 1.

2. The Adjudicating Authority in the said Application has appointed a Mediator/local Commissioner to visit and permit the Plant Equipment Machinery to be removed from the building.

3. It was noticed by the Adjudicating Authority that the land belongs to the Himalayan Mineral Waters Pvt. Ltd. who had granted lease to Fedders which got terminated on 30.02.2022.

4. Learned Counsel for the Appellant submits that the Appellant was neither impleaded Party to the proceeding and the effect of the Order is that goods which belong to the Appellant are under the threat to be removed by Fedders by the Impugned Order.

5. Learned Sr. Counsel Mr. Gaurav Mitra appearing for the Respondent submits that Respondent No. 1, Himalayan is admittedly Owner of the land and hence he does not want to continue the sub-lessee of Fedder and in the CIRP of the Himalayan now due to the issues appropriate Expression of Interests are not coming.

6. Learned Counsel for the Appellant submits that Appellant has certain suggestions to resolve the dispute between the Parties. He undertakes to communicate his suggestion in writing to both Himalayan and Fedders within two weeks from today.

7. Issue Notice to Respondents No. 2 & 3.

8. Learned Sr. Counsel Mr. Gaurav Mitra appears for Respondent No. 1.

9. Let Reply be filed within three weeks from today.

10. In the meantime, in pursuance of the Impugned Order, Plants and Equipment may not be removed and demolition be carried on the subject land.

List this Appeal on 22nd November, 2024.

6. Counsel for the appellant has submitted that further an order was

passed by this court on 22.11.2024 as per which the appellants were

directed to deposit the rent w.e.f August, 2024 @ Rs. 10,00,000/- p.m. i.e.

Rs. 7.5 lakhs by appellant no. 1 and Rs. 2.5 lakhs by appellant no. 2 for both the premises, on or before 7th day of each calendar. It is submitted that

the rent from August, 2024 till August, 2025 has continuously been

deposited by way of pay order to Pay & Accounts Officer, Ministry of

Corporate Affairs, New Delhi.

7. Counsel for the appellant has submitted that both the appellants, in

any case, would have to vacate the premises in question but he has

requested for granting reasonable time for the said purpose because the

material of both the appellants, lying in the demised premises is made of

glass and is in huge quantity which requires at least three months' time for

its removal/shifting.

8. He has also submitted that so long he will remain in possession of

the premises in question, he shall keep on paying the rent as per the order

dated 22.11.2024. Order dated 22.11.2024 is reproduced as under:

"Ld. Counsel for the Respondent Nos. 1, 2 & 3 seeks time to file reply. Be filed within three weeks. Rejoinder, if any, be filed within two weeks thereafter.

At this stage, it is submitted by the Ld. Counsel for the Respondent that let the Appellant be directed to deposit outstanding rental w.e.f. August, 2024 till date, with this Tribunal and shall continue to deposit it on monthly basis till the appeal is decided. Learned Counsel for the Appellant has no objection to the same. Let the arrears be deposited within ten days from today with the Registrar of this Tribunal and thereafter monthly rental be deposited on or before 7th of each calendar mention if the same is deposited it shall be disbursed as per the order of this Tribunal. List this appeal for hearing on 23rd January, 2025. Interim order to continue".

9. It is further submitted by him that the land under the shed is

allegedly owned by M/s Himalayan Minerals Waters Pvt. Ltd. which is also

in CIRP in which Mr. Bhoopesh Gupta has been appointed as the RP and the building/shed constructed over the land is claimed by Respondent No. 2

and 3 as belonging to them, therefore, the amount of rent which has been

generated on the premises in question and is lying deposited by order dated

22.11.2024 is required to be apportioned accordingly.

10. Counsels appearing on behalf of the Respondents have submitted

that they are not averse to grant of time to vacate the premises in question

but have strongly objected to the period of three months as prayed for by the

appellants. It is submitted by them that the appellant is already in

possession from the last 9 months by virtue of the order passed by this

court therefore, the time, asked for by the appellant, may be reduced to half.

11. Counsel for the Respondent has also submitted that the amount of

rent lying in this court may be deposited in an escrow account and liberty

may be given to them to file an appropriate application before the Ld.

Tribunal for claiming the said amount in accordance with law. It is also

submitted that, in so far as, Respondent No. 1 is concerned, the resolution

plan submitted by Poly Medicure Ltd. is under consideration because the

order has been reserved by the Ld. Tribunal and has not been pronounced

so far.

12. We have heard Ld. Counsel for the parties and examined the

available record with their able assistance.

13. In so far as the impugned order is concerned, we do not find any

reasons to interfere in this order but keeping in view the facts and

circumstances of this case and that the appellants have to remove the

material lying in the demised premises which is enormous as appears from the photograph attached coupled with the fact that it consists of glass which

has to be carefully removed and the fact that the monsoon season is still

going on, therefore, we deem it just and expedient to grant time till

15.09.2025 to both the appellants to vacate the premises in question. It is

made clear to the appellant that they have to deposit the rent of 15 days of

the month of September, 2025 on or before 03.09.2025 in terms of the

earlier order passed by this court on 22.11.2024.

14. In case the appellant commit any kind of breach of the undertaking

given to this court through their Counsel, needless to say that they shall be

prosecuted for contempt of court in accordance with law, besides their

eviction from the premises in question by using police force. In so far as, the

amount which has been deposited by the appellants in this court from

August, 2024 till August, 2025 is concerned the same shall be released by

the Pay & Accounts Officer, Ministry of Corporate Affairs, New Delhi to the

RP along with the rent from 01.09.2025 to 15.09.2025 which is yet to be

deposited on furnishing his identification in accordance with law. The RP of

Respondent No. 1 is further directed to deposit the said amount in an

escrow account and shall immediately file an application before the Ld.

Tribunal for obtaining an order of disbursement of the amount of rent to the

party concerned or as per their entitlement.

15. It is also directed that the Pay & Accounts Officer, Ministry of

Corporate Affairs, New Delhi, shall pay to the RP, on his application, within

a period of 15 days after due verification.

16. The appeal is thus disposed of though without any order as to cost

and all pending IA's, if any, are hereby closed.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Justice Mohammad Faiz Alam Khan] Member (Judicial)

[Naresh Salecha] Member (Technical) sr/rr