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

New Okhla Industrial Development Authority ...Appellant

Versus

Kashi Vishwanathan Sivaraman & Anr. ...Respondents

Present: For Appellant: Mr. Rachit Mittal, Mr. Adarsh Srivastava, Advocates.

For Respondents: Ms. Ritika Gaur, Mr. Niraj Chamiyal, Mr. Dhananjaya Sud, Ms. Swechcha Mishra, Advocates for R-1. Mr. Abhishek Anand, Mr. Karan Kohli, Advocates for R-2.

ORDER

(Hybrid Mode)

18.04.2024: Heard learned counsel for the Appellant as well as learned

counsel appearing for the Respondent. This Appeal has been filed against

order passed by the Adjudicating Authority dated 22.12.2023 in I.A. No.827 of

2023. The IA was filed by the Appellant New Okhla Industrial Development

Authority seeking declaration that they are Secured Creditors. Further, by the

application they have raised objections to the Resolution Plan. The

Adjudicating Authority rejected the application by the impugned order.

Appellant challenging the order dated 22.12.2023 has filed this Appeal.

Cont'd.../ -2-

2. When the Appeal was taken, this Tribunal passed following order on

13.02.2024:

"O R D E R (Hybrid Mode)

13.02.2024: Learned Counsel for the Appellant submits and relies on Judgment of Hon'ble Supreme Court in C.A. No. 7590-91 of 2023, GNIDA Vs Prabhjit Singh Soni & Anr. dated 12.02.2024 in which judgment, Greater NOIDA has been declared as Secured Creditor and hence the impugned order deserves to be set aside.

2. Learned Counsel for the Respondent submits that there is a difference between the facts with regard to case relied by the Appellant and the present case. He seeks time to file Reply.

3. Let Reply-Affidavits be filed within two weeks. Rejoinder may be filed within two weeks, thereafter.

List this Appeal on 27th March, 2024. In the meantime, Impugned Order shall remain stayed."

3. Learned counsel for the Appellant submits that Reply Affidavit has been

filed by the Respondent No.1. Learned counsel for the Appellant submits that

a recent judgment of this Tribunal delivered in "Company Appeal (AT) (Ins.)

No. 1147 of 2023 and 519 of 2023, Mr. Anil Matta vs. Greater Noida

Industrial Development Authority" dated 09.04.2024 fully covers the issue

in the present appeal.

Company Appeal (AT) (Ins.) No.297 of 2024 -3-

4. Learned counsel for the Respondent submits that factual matrix of the

judgment of Hon'ble Supreme Court in "Greater Noida Industrial

Development Authority vs. Prabhjit Singh Soni & Anr., Civil Appeal

Nos.7590-7591 of 2023" and the present case are entirely different. It is

submitted that the NOIDA Authority has not filed any claim in the CIRP

whereas in the case of Prabhjit Singh Soni claim was filed although in

different form. It is submitted that two letter were issued but no claim was

filed. When the plan was approved by the CoC then application was filed by

NOIDA Authority being I.A. No.827 of 2023. Learned counsel for the

Respondent further submits that the lease deed in the present case has not

been cancelled.

5. We have considered the submissions of learned counsel for the parties

and perused the record.

6. It is not disputed that the Corporate Debtor entered into lease with

NOIDA Authority and the dues of the NOIDA Authority have not been paid,

which has already been noted in Para 4 of the impugned order. When the

dues are there on the Corporate Debtor, by virtue of Section 13A, it is charge

on the assets of the Corporate Debtor. The mere fact that Appellant has not

filed claim does not disentitle the Appellant to appear before the Adjudicating

Authority and file application objecting the Resolution Plan which does not

consider the claim of the Appellant in accordance with law. Even if, no claim

Company Appeal (AT) (Ins.) No.297 of 2024 -4-

is filed by the Appellant, Resolution Professional is duty bound to consider the

debt as reflected in the records of the Corporate Debtor.

7. Learned counsel for the Resolution Professional sought to contend that

the claim was not reflected in the Information Memorandum. Learned counsel

for the Resolution Professional, however, submits that the NOIDA Authority

was treated as an Operational Creditor and an amount of Rs.10 Crore was

earmarked in the plan.

8. NOIDA Authority was the lease holder and the records of lease were

already with the Resolution Professional being record of the Corporate Debtor,

therefore, the claim has to be reflected by the Resolution Professional in the

Information Memorandum.

9. We, thus, are of the view that in view of the judgment of this Tribunal in

Anil Matta's case (supra) as well as judgment of Hon'ble Supreme Court in

Prabhjit Singh Soni (supra), the Appellant is clearly a Secured Operational

Creditor. Hence, we are of the view that the order of the Adjudicating Authority

rejecting the application of NOIDA Authority is unsustainable. We set aside

order dated 22.12.2023. Hold the Appellant as Secured Operational Creditor.

The Adjudicating Authority may proceed accordingly in accordance with law.

10. We make it clear that we have not entered into any other issued in the

appeal except issue of claim of NOIDA Authority. It shall be open for both the

parties to raise all other issues before the Adjudicating Authority. The

Company Appeal (AT) (Ins.) No.297 of 2024 -5-

Adjudicating Authority may consider the application for approval of Resolution

Plan expeditiously in accordance with law.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical) Archana/nn

Company Appeal (AT) (Ins.) No.297 of 2024