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TMI Blog2021 (12) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... nal, Mumbai Bench) in MA 2972/ 2019 in CP (IB) No. 82/MB.II/2018. PAR Formulations Pvt. Ltd. has filed this appeal against Print House (India) Pvt. Ltd., the Corporate Debtor as Respondent No. 1, Manish Baldeva, former Resolution Professional (in short RP) of Corporate Debtor as Respondent No. 2 and Sify Technologies Limited, the Successful Resolution Applicant as Respondent No. 3. 2. By the Impugned Order, the Adjudicating Authority has, inter alia, approved the Resolution Plan submitted by M/s. Sify Technologies Limited (Respondent No. 3) in the Corporate Insolvency Resolution Process (CIRP) of Respondent No. 1-Corporate Debtor. The Appellant has challenged the Impugned Order to the extent that it affects the Appellant's rights regarding termination of the existing Leave and Licence Agreement dated 16.6.2017 (hereinafter called 'Licence Agreement', attached at pp. 194-212 of Appeal paperbook) with Respondent No. 1 and refund of the security deposit upon delivery of the premises and on the ground that the order has been passed without giving any notice or opportunity of hearing to the Appellant. 3. In brief, the facts of the case as stated and argued by the Appellant are that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleged that Respondent No. 1 has started renovation work in the premises/building of the said property, which is proving to be a hindrance in the enjoyment of his rights under the Licence Agreement. 7. The arguments of all the parties were heard and the pleadings of all the parties were considered by us. 8. The Learned Counsel for Appellant has argued that by virtue of lock-in clause in the Licence Agreement, the Appellant is entitled to enjoy peaceful possession of the property till 23.8.2022. He has stated that upon learning about the CIRP of Respondent No.1-Corporate Debtor, the Appellant enquired from Respondent No. 2 through a letter dated 11.9.2019 about the Resolution Plan and its potential impact on its rights. He did not receive any reply, and sometime later, the Impugned Order was passed by the Adjudicating Authority on 23.6.2020. He has claimed that the Appellant was supplied with a copy of the Impugned Order on 25.7.2020 and again on 26.9.2020, even though Respondent No. 2 merely informed him of the impugned order and requested for details of lease, rent or other charges to be paid by the Appellant, without making any request to the Appellant to vacate the subject pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that there has been delay or laches on the part of the Appellant in approaching the NCLT because the cause of action has arisen only after Respondent No. 1 issued the termination noted dated 26.4.2021(supra) calling upon the Appellant to vacate the subject property. He has claimed that invoices were being issued by the Respondent No. 1 and it was only after the issuance of the termination notice that Respondent No. 1 stopped issuing invoices upon the appellant. Hence, 26.4.2021, which is the date on which the Appellant received termination notice should mark the beginning of the period of limitation and, therefore, the appeal has been filed within limitation. 12. The Learned Counsel for Respondent No. 2 (former RP of the Corporate Debtor) has adverted to the judgment of Hon'ble Supreme Court in the case of Jaypee Kensington Blvd. Apartments vs. NBCC (India) Limited & Anr. [Civil Appeal No. 3395 of 2020], wherein the proposition that the commercial wisdom of Committee of Creditors (CoC) is not open to judicial review ordinarily, has been upheld. He has also claimed that the Appellant was aware of the fact that the Resolution Plan had been approved vide Impugned Order dated 23.6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he approval of the resolution plan in the insolvency proceedings at least from 25 July, 2020 and it never approached the Adjudicating Authority regarding protection of its right in the Licence Agreement. Since the insolvency proceedings are in rem, the Appellant was aware of the same from 3.9.2019 by the email of Resolution Professional (p.226 of Appeal paperbook, Vol.II) and is, therefore, therefore, guilty of delay and laches and since 'delay defeats equity', his appeal is liable to be dismissed. He has argued that the approval of the Resolution Plan under IBC is in itself a binding contract as is stated in section 30 of IBC. 15. The Learned Counsel for Respondent No. 3 has also argued that the erstwhile promoter, who is an unsuccessful Resolution Applicant, had separately preferred appeal before the Hon'ble NCLAT challenging the approval of Resolution Plan by the Adjudicating Authority which was dismissed vide judgment dated 14.3.2021. The Learned Counsel has further submitted that Respondent No. 3 has already invested over Rs. 70 crores in the last 11 months in the said property and has issued purchase orders worth Rs. 180 crores to several vendors. Thus it has commenced work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmination of the agreement without assignment of any reason by furnishing six months' notice. Clause 12(c) makes the licencee liable for paying all outstanding payments which include rent, water charges and electricity charges calculated on the date of termination or the date of handover of the licensed premises. It is also noticed that a formal notice was given vide e-mail dated 27.4.2021 by the Successful Resolution Applicant SIFY Technologies Limited to he Appellant (attached at pp. 258-261 of Appeal paperbook, Vol. II), even if we consider this to be a formal notice under the leave and licence agreement and Successful Resolution Applicant to be responsible as a signing authority in the said agreement, more than 7 months have passed since the sending of this notice. Even then, as per clause 12 (b) of the licence agreement, unilateral termination of the agreement has been enforced by the Successful Resolution Applicant. 19. We note that the Appellant exchanged communications/emails with the RP and later with the Successful Resolution Applicant -Sify Technologies Limited (Respondent No. 3) about his interest in continuing in the said premises but was informed very clearly vide e- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tected, more so as clause 12(b) of the Licence Agreement does provide the possibility of unilateral termination of the Licence Agreement after the period of six months from giving notice. 22. In the present case, even though the Licence Agreement's termination was included in the Resolution Plan, we find that the Successful Resolution Applicant followed the Licence Agreement as per clause 12 (a) in terminating the agreement. Thus he has not violated the rights of the Appellant in the Licence Agreement. 23. Since the Appellant's lease under the Licence Agreement have been duly terminated by resorting to the terms of Licence Agreement, we do not feel any need to go into the other issues as contravention of law in the formulation of the Resolution Plan as has been claimed by the Appellant. 24. We are conscious of the fact that the Appellant has set up a laboratory and carries out activities in relation to its business of production of oral, liquid and injectable medicines for itself and its affiliate companies in the said premises, and it may be difficult for it to shift its operations to another premise immediately. We are also aware that the two other licensees of the previous Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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