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TMI Blog2021 (12) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be heard in contending that he is not liable to pay transfer fee. Auction of the Sale Assets was already completed on 11th June 2019 and thereafter the Applicant made a request and submitted the higher bid. In the letter quoted, there was specific submission We promise to follow all the conditions of your Auction and we are also ready to pay the transfer charges to WBIDC . The Appellant cannot be now allowed to go back from his statement that he will pay the transfer charges also. Appeal dismissed - decided against appellant. - Company Appeal (AT) (Insolvency) No. 206 of 2021 Contempt Case (AT) No.17 of 2021 - - - Dated:- 17-12-2021 - [Justice Ashok Bhushan] Chairperson , [Justice Jarat Kumar Jain] Member (Judicial) And [Dr. Alok Srivastava] Member (Technical) For the Appellant: Mr. Debal Kr. Banerji, Sr. Advocate with Mr. Debojyoti Bhattacharya, Mr. Deepnath Roy Chowdhury and Mr. Debdeep Sinha, Advocates For the Contemnor/Respondents : Mr. Rahul Auddy, Advocate for R- 1. Mr. Jayant Mehta, Sr. Advocate with Mr. Nikhil Parikshit, Advocate for R-2 JUDGMENT ASHOK BHUSHAN, J. The Appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016 (he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee. (xiii) The Appellant again filed an Application before the Adjudicating Authority, questioning the liability of transfer fee, challenging the letter dated 3rd September, 2020 of West Bengal Industrial Development Corporation Limited. (xiv) The said Application was heard by the Adjudicating Authority and by the impugned order dated 02.02.2021 the application of the Appellant was rejected. The Adjudicating Authority directed the Appellant/ Applicant to pay the transfer fee to the West Bengal Industrial Development Corporation Limited. (xv) This Appeal has been filed by the Appellant challenging the order dated 02.02.2021. 2. We have heard Shri Debal Kr. Banerji, learned Senior Counsel for the Appellant, Shri Jayant Mehta, Learned Senior Counsel for Respondent No.2 and Shri Rahul Auddy, learned Counsel for Respondent No.1. 3. Shri Debal Kr. Banerji, learned Senior Counsel for the Appellant submits that only issue to be considered in the present Appeal is with regard to liability of transfer fee. Shri Banerji submits that sale by Liquidator is involuntary on which no transfer fee is payable. He further submits that Adjudicating Authority has wrongly assumed that Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record. 7. The main issue to be considered and answered in this Appeal is, as to whether the Appellant was liable to pay transfer fee as demanded by the West Bengal Industrial Development Corporation Limited. 8. The first ground of attack on the payability of transfer fee as mounted by Shri Debal Kr. Banerji, learned Senior Counsel for the Appellant is that the transfer by Liquidator is involuntary transfer and there is no payability of transfer fee and transfer fee could have been asked for as per sub-lease Deed dated 6th August, 2010 in event a voluntary transfer was made by the Company. Learned Senior Counsel for the Appellant in support of his submission has placed reliance on judgment of Calcutta High Court in 1958 SCC OnLine Cal 213 Krishna Das Nandy v. Bidhan Chandra Roy; the judgment of the Hon ble Supreme Court in (1980) 3 SCC 565, M/s Parasram Harnand Rao vs. M/s Shanti Parsad Narinder Kumar Jain and Anr.; and B. Arvind Kumar vs. Government of India, (2007) 5 SCC 745. 9. In Krishna Das Nandy case (supra), the question was as to whether the defendant s purchase came within Clause (a) and (b) of proviso to Section 13 of West Bengal Rent Control Act, 1950. The qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom eviction and the provisos only mentioned the exceptions to that immunity. In this context, when proviso (a) speaks of a transfer by the tenant, it refers, in our opinion, to a transfer in substance at least if not in form also by the tenant, and it will not apply where the transfer is by operation of law and the tenant has no hand in it, although, technically or in form, it is and appears to be a transfer by him. Whether the same principle ought to apply when construing a covenant against alienation is an entirely different matter which does not arise for consideration in this appeal and we prefer to express no opinion on the point and necessarily therefore, on the English case cited, namely, (1921) 2 Ch. 164 (12) (supra), and the Allahabad decision (I.L.R. 12 All. 192??? (11) (supra) too. We hold, accordingly, that provisos (a) and (b) of section 12(1) would nor apply to this case and the defendant would not be deprived of protection under the Rent Control Act unless the plaintiff can succeed on the other provisos, pleaded by him, viz. proviso (h). 10. The next case referred to by Shri Banerji is (1980) 3 SCC 565, M/s Parasram Harnand Rao vs. M/s Shanti Parsad Narinder Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Liquidator was an involuntary sale, then it undoubtedly became an assignment as provided for by Section 14(1)(b) of Delhi Rent Control Act. Section 14(1)(b) runs thus: That the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord. 11. The judgment of the Hon ble Supreme Court in M/s Parasram Harnand Rao (supra) does not support the submission of the learned Counsel for the Appellant. Sale on behalf of Corporate Debtor by Liquidator was held sale by the Company and was held to be voluntary sale. 12. Now we come to another judgment of the Hon ble Supreme Court in Cox Kings Ltd. vs. Chander Malhotra, (1997) 2 SCC 687. In this case, the Hon ble Supreme Court relied on its earlier judgment in Parasram Harnand Rao (supra). It is useful to ascribe paragraph 6 of the judgment where a passage from Parasram Harnand Rao was quoted with approval: 6. The respondent-landlord is not bound by such assignment, induction of the appellant-Company against her wishes. Her written consent is a precondition, as envisaged under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e language of Section 14(b) is wide enough not only to include any sub-lease but even an assignment or any other mode by which possession of the tenanted premises is parted. In view of the wide amplitude of Section 14(b) we are clearly of the opinion that it does not exclude even an involuntary sale. For these reasons therefore we are unable to agree with the view taken by the High Court. The appeal is accordingly allowed, the judgment and decree of the High Court are set aside and the plaintiff's application under Section 25 of the Delhi Rent Control Act is dismissed. 13. The above judgment of Hon ble Supreme Court clearly indicates that transfer made by a Liquidator is transfer on behalf of the Company and sale by Liquidator cannot be said to be involuntary sale. 14. Section 35 of the IBC, which deals with powers and duties of liquidator, sub-section (f) and (g) clearly indicate that the actions taken by Liquidator are on behalf of the Corporate Debtor. Section 35 sub-section (f) and (g) are as follows: 35 (f) subject to section 52, to sell the immovable and movable property and actionable claims of the corporate debtor in liquidation by public auction or private ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub-Lease hold right: The Sub-Lease shall not assign/ transfer the Demised Premises or any part thereof without obtaining any prior approval and/ or consent in writing from the Sub-Lessor. Such permission shall be granted by Sub-Lessor will be given after payment by the Sub-Lessee to the Sub-Lessor 10% of the prevailing market value of the scheduled property as shall be assessed by the Registering Authority of the Government of West Bengal as transfer fees .. 18. We thus are of the view that transfer fee in respect of transfer made by Liquidator of the lessee assets is liable to be paid and transferee cannot absolve himself from payment of liability to pay transfer fee. 19. Now we come to the orders passed by Adjudicating Authority on 23rd June, 2020 and 29th July, 2020. Before the Adjudicating Authority, an Application was filed by the Appellant seeking further time to make the balance payment. In that connection, while allowing the Application of the Appellant, certain directions were issued by the Adjudicating Authority, including a direction to pay transfer fee by the Appellant. Paragraph 13(iii) is as follows: 13(iii). It is made clear that the applicant/ purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X
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