Kashi Viswanathan Sivaraman ... vs New Okhla Industrial Development ...

Kashi Viswanathan Sivaraman, Resolution Professional, Kindle Developers Pvt. Ltd. ...Appellant

Versus

New Okhla Industrial Development Authority ...Respondent

Present: For Appellant: Mr. Gaurav Mitra, Mr. Prateek Kushwaha, Mr. Kanish Khetan, Advocates with Mr. Kashi Vishwanathan (IRP). For Respondent: Mr. Rachit Mittal, Advocate.

ORDER

(Through Virtual Mode)

27.07.2020: After hearing learned counsel for the Appellant, we find that

I.A.1592/2019 in CP No. IB-470(ND)/2017 was filed by Noida Authority before the

Adjudicating Authority (National Company Law Tribunal), New Delhi Bench, Court

II, alleging that the lease of the land being the substratum of the Corporate Debtor's

project has been cancelled vide letter dated 31st Mach, 2015 for want of deposit of

necessary lease rent/ charges in terms of the allotment. It was also pointed out

that the Committee of Creditors has approved the Resolution Plan on the wrong

assumption that the land belonged to the Corporate Debtor. The Adjudicating

Authority observed in the impugned order dated 20th February, 2020 that when the

Contd.../ -2-

lease of the allotted land stood cancelled by the Noida Authority way back in 2015,

the Resolution Plan could not be considered by it for approval. The Adjudicating

Authority further observed that Corporate Debtor's prayer for considering the

Corporate Insolvency Resolution Process de novo was a blatant instance of wanting

to perpetuate their criminal intent of cheating the Home Buyers/ Allottees. While

it observed that the Corporate Debtor had knowledge that no project could be

implemented or flats constructed and delivered when there was no land, it directed

the Resolution Professional to look into the matter and file a proper complaint with

the EOW Cell of the Delhi Police. It also agreed to consider the issue raised by the

Corporate Debtor for de novo Corporate Insolvency Resolution Process, provided

the Corporate Debtor was able to demonstrate that a lease of a plot for completion

of the project was subsisting in their favour. The Adjudicating Authority

accordingly adjourned the matter for further consideration.

2. On bare perusal of the impugned order, it emerges that the Adjudicating

Authority declined to consider the Resolution Plan as the Noida Authority alleged

that it had cancelled the lease for want of deposit of lease rent/ charges in terms of

the allotment. Learned counsel for the Appellant referred to reply provided in

response to a RTI query which shows that the amount of rent was outstanding. But

there is nothing in the letter to show that the lease was subsisting or had been

Company Appeal (AT) (Insolvency) No. 605 of 2020 -3-

cancelled. Thus, on the strength of this reply alone it cannot be held that the lease

was subsisting.

3. Learned counsel for the Appellant further submits that the Resolution

Professional moved I.A. 1664/2019 under Section 30(6) of the I&B Code for

approval of the Resolution Plan by the Adjudicating Authority which has not been

considered. On perusal of the impugned order we find that the application of

Resolution Professional has not been disposed of and the matter has been directed

to come up for further consideration.

4. Learned counsel for the Appellant - Resolution Professional submits that in

compliance to the direction given in the impugned order, the Resolution

Professional has already filed a complaint with the EOW Cell of Delhi Police on 20th

May, 2020. Learned counsel for the Appellant further submits that the lease is still

subsisting and the Resolution Professional's application for consideration for

approval of the Resolution Plan is required to be considered on its own merit. While

Mr. Rachit Mittal, learned counsel representing Noida Authority re-iterated that the

lease of land favouring the Corporate Debtor stands cancelled on 13th August, 2015,

learned counsel for the Appellant submits that on 14th June, 2016, the Corporate

Debtor has approached the Noida Authority for restoration/revival of the lease

which is still pending consideration with the Noida Authority.

Company Appeal (AT) (Insolvency) No. 605 of 2020 -4-

5. In the given circumstances, we find that the instant appeal is not

maintainable as no final decision has been taken by the Adjudicating Authority in

regard to approval of the Resolution Plan and matter has been adjourned for further

consideration. We dispose of this appeal with direction that the Adjudicating

Authority shall accord consideration to the matter in the light of the application

filed before it which is pending consideration and after taking interests of all

stakeholders into consideration. The Adjudicating Authority will record a clear

finding in regard to cancellation/ subsistence of the lease after providing

opportunity and hearing all concerned parties before passing order in regard to

approval or otherwise of the Resolution Plan. It is expected that the Adjudicating

Authority will accord top priority to the matter keeping in view the timelines and

decide the matter expeditiously. The Appeal is disposed off with aforesaid direction.

[Justice Bansi Lal Bhat] Acting Chairperson

[V. P. Singh] Member (Technical)

[Shreesha Merla] Member (Technical) am/gc

Company Appeal (AT) (Insolvency) No. 605 of 2020