Greater Noida Industrial Development ... vs Ca Anil Matta

Greater Noida Industrial Development Authority ...Appellant

Versus

CA Anil Matta ...Respondent

For Appellant: Mr. U.N. Singh, Advocate

For Respondent: Mr. Abhijeet Sinha, Mr. Kaushank Sindhu, Mr. Abhinav Goyal and Mr. Gazal Ghai, Advocates (for RP)

ORDER

(Virtual Mode)

10.12.2021 Heard Shri U.N. Singh, learned Counsel for the Appellant

and Shri Abhijeet Sinha, learned Counsel appearing for the Respondent. This

Appeal has been filed against Judgement and Order dated 2nd July, 2021

passed by National Company Law Tribunal, New Delhi Bench - II in Company

Application No. 812/2020 in Company Petition No. IB-995(ND)/2018. An

Order under Section 9 was passed at the instance of one of the Operational

Creditor - VMS Equipment Pvt. Ltd. for initiation of CIRP (Corporate

Insolvency Resolution Process) of Corporate Debtor - M/s. Primrose Infratech

Pvt. Ltd. The Order was passed on 21.12.2018.

The Greater Noida Industrial Development Authority had filed its claim

in Form 'C' claiming to be Financial Creditor with the Resolution Professional

- the Respondent. The said claim was vetted and verified and at the

subsequent stage, Resolution Professional has taken a decision that Greater 2

Noida Industrial Development Authority is not a Financial Creditor rather it

is an Operational Creditor. An Application was filed by Greater Noida

Industrial Development Authority under Section 60(5) impugning the decision

of Resolution Professional declaring the Applicant in the 6th COC held on

17.12.2019 as Operational Creditor. The said Application has been rejected

by the impugned Judgement of the Adjudicating Authority. Aggrieved by the

said Judgement, this Appeal has been filed.

Shri Abhijeet Sinha, Advocate for the Respondent at the very outset

pointed out that the same very issue has already been decided by this

Appellate Tribunal in Company Appeal (AT) (Ins) No.55 of 2021 in the matter

of "Greater Noida Industrial Development Authority vs. Shri Pramod Agrawal

& Anr." which Appeal was filed by Greater Noida Industrial Development

Authority against similar Order dated 28.2.2020 declaring the Appellant as

Operational Creditor and the Appeal had been dismissed by this Tribunal by

its Judgement and Order dated 21st June, 2021. It is submitted by Shri

Abhijeet Sinha that the same issue having already been decided against the

Appellant by this Tribunal, it is not open for the Appellant to agitate the same

issue in this Appeal. It is submitted that Appellant is clearly bound by

Judgement dated 21st June, 2021. Shri Abhijeet Sinha further submits that

regarding the Judgement dated 21st June, 2021 which was delivered by this

Tribunal in Company Appeal (AT) (Ins) No.55 of 2021 which was filed by the

Appellant itself, there is no mention of the said Judgement in the Appeal nor

it has been explained that when the Judgement of this Tribunal is already

Company Appeal (AT) (Ins) No.1014 of 2021 3

there on the question against the Appellant, how the Appellant is contending

to the contrary in this Appeal.

We have considered submissions of learned Counsel for the Appellants

and perused the record and the impugned Judgement upholding the decision

of the Resolution Professional that Appellant is Operational Creditor and not

Financial Creditor. At the time of hearing by the Adjudicating Authority, the

Judgement dated 21st June, 2021 was not available. This Tribunal had

already considered the claim of the Appellant to be Financial Creditor on the

basis of the lease deed dated 29.09.2011 and in paragraph 10 of the earlier

Judgement, following has been held:-

"10. Having heard Learned Counsel for both the sides and having gone through the matter, we record that we have already examined a similar Lease Deed in the matter of "New Okhla Industrial Development Authority vs. Mr. Anand Sonbhadra (RP)", Company Appeal (AT) (Ins.) No. 1183/2019 dated 16.04.2021 and such Lease Deed was threadbare discussed by us in that matter. We have already in that matter held that such Lease Deed (as in the present one) does not constitute the Financial Lease. For similar reasons we do not find that Appellant is able to show Financial Lease in its favour. Rewards incidental to ownership of the underlying asset-land were not transferred, in the Lease Deed if contents are considered reading the same with Indian Accounting Standards."

Company Appeal (AT) (Ins) No.1014 of 2021 4

We are of the view that the issue having already been decided by this

Tribunal in Company Appeal (AT) (Ins) No.55 of 2021 which Appeal was filed

by the Appellant, the Appellant cannot be heard in making any contrary

contention. The Judgement of this Tribunal in Company Appeal (AT) (Ins)

No.55 of 2021 has concluded the issues and the Appellant cannot be

permitted to reagitate the same issue in this Appeal.

We thus uphold the impugned Judgement of the Adjudicating Authority

relying on the earlier Judgement of this Tribunal in Company Appeal (AT) (Ins)

No.55 of 2021 dated 21st June, 2021.

There is no merit in the Appeal. The Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Justice Jarat Kumar Jain] Member (Judicial)

[Dr. Alok Srivastava] Member (Technical) rs/nn

Company Appeal (AT) (Ins) No.1014 of 2021