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TMI Blog2022 (1) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the RP has any locus to file Application before Adjudicating Authority? - HELD THAT:- The R-1 in the said letter has not disclosed the name and number of allottees who are demanding R-1 to allot flats on the basis of agreements executed by the Corporate Debtor. The RP has not stated in the Application that after receiving the letter he has verified the contents of the letter. The RP has not filed any claim form and list of such allottees, therefore, the statement of the RP that he has received the claim of 161 allottees, is not correct - RP has no locus to file the Application. Admittedly, the transfer of portion of plot by sub-lease was effected on 27.09.2016 whereas CIRP initiated after more than two years i.e. on 26.11.2018. The RP has no ground to doubt the transaction which is more than two years prior to commencement of CIRP. The association has not raised any plea of fraud in transferring the plot by sub-lease to R-1 and the RP has failed to make out a case that the sub-lease was executed for depriving the rights of homebuyers - there are no substance in the argument of Ld. Counsel for the Appellant that the sub-lease is actuated by fraud, therefore, no limitation h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2018) under Section 9 of the IBC against the Corporate Debtor the same was admitted by the Adjudicating Authority vide order dated 26.11.2018 and Mrs. Harkamal Hora Arora was appointed as IRP. Thereafter, vide order dated 18.02.2019 Mr. Anand Sonbhadra was appointed as RP. 4. During the course of conducting CIRP, the RP (Appellant herein) received a letter dated 18.03.2019 from the Arham Escon (R-1) that while sub leasing the said plot the Corporate Debtor represented that the said plot is free from all encumbrances and third party claims/rights. However, Arham Escon had received several complaints from Homebuyers informing that the Corporate Debtor allotted the flats to be made in tower Nos. 5,6,7 7A located at the sub-leased plot, as per the plans approved by GNIDA. Therefore, Arham Escon directed the RP to take legal action against the ex-management of the Corporate Debtor. 5. According to the RP during the CIRP, he has received aggregated claims amounting to ₹ 18,49,82,170/- from the 161 homebuyers who were allotted flats in towers nos. 5, 6, 7 and 7A. As per plan approved by GNIDA, these towers are proposed to be constructed on sub-leased plot. 6. It is point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f relief sought in the Application. It is also pointed out that pursuance of the Sub-lease the R-1 had obtained No Objection Certificate (NOC) for high clearance from Airport Authority of India and the certificate with respect of building byelaws from Registered Architect, Planner, Valuer and Landscape, Interior. The R-1 had obtained term loan of ₹ 50 Crores by mortgaging the said plot with Kotak Mahindra investment with the permission of GNIDA. Hence, the Application be dismissed. 9. After hearing Learned Counsel for the parties, Ld. Adjudicating Authority vide impugned order dismissed the application. Being aggrieved with this order the Appellant (RP) has filed this Appeal. 10. Learned Counsel for the Appellant submitted that the Learned Adjudicating Authority has failed to consider that the Corporate Debtor collected booking amounts against the flats pertaining to Tower nos. 5,6, 7 7A which were supposed to be constructed as per the sanctioned plan on the plot which was sub-leased to R-1. The Corporate Debtor, without returning the booking amounts to such allottees had sub-leased the portion of plot to R-1. After receiving the letter of R-1 dated 18.03.2019 the RP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suant to approval of GNIDA in favour of R-1. R-1 had paid a sum of ₹ 13,54,24,341/- to GNIDA under the lease deed. The Tripartite Agreement though nomenclature as a sub-lease was for all intents and purposes, a lease by GNIDA in favour of R-1 with no rights in the said plot remaining with the Corporate Debtor. The Adjudicating Authority cannot cancel such registered instrument. 17. The Ld. Adjudicating Authority while exercising the jurisdiction under Section 60(5) (c) of the IBC cannot declare a registered sub-lease deed as void ab-initio, the Appeal is misconceived and liable to be dismissed. 18. Ld. Sr. Counsel for the Respondent No. 1 submitted that the RP cannot consider to be a person aggrieved. Therefore, he has no locus to file Appeal under section 61 of the IBC in view of the order passed by this Appellate Tribunal in the case of S. Rajendran v. Jonathan Mourali Darang [2019 SCC Online NCLAT 758]. Ld. Adjudicating Authority after considering the factual as well as legal issues dismissed the Application. 19. Ld. Counsel appearing on behalf of the Respondent No. 2 adopts the argument advanced by the Ld. Sr. Counsel for the Respondent No. 1 and supports the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the permission of R-2. Though the Tripartite Agreement is titled as sub-leased deed. However, this instrument for all practical purposes is lease deed as in this deed R-1 has no obligation or liability towards Corporate Debtor. R1 has to pay lease rent directly to the R-2. 28. The RP although pleaded that he has received aggregated claims amounting to ₹ 18,49,82,170/- from 161 allottees of Tower Nos. 5, 6, 7 7A. As per sanctioned plan, these Towers are proposed to construct on the portion which was sub leased by the Corporate Debtor. Admittedly, the RP has not filed any list of such allottees and their claim forms. The RP has filed only a letter dated 18.03.2019 received from R-1. 29. The sum and substance of the aforesaid letter is that according to the R-1, Corporate Debtor has misrepresented that sub-leased plot is free from all encumbrances and third party claims/rights, whereas some allottees are demanding R-1 to allot flats in their favour in accordance with the builder buyer agreement executed by the Corporate Debtor. Therefore, the R-1 directed the RP to take necessary actions against the ex-management of Corporate Debtor and take steps for cancellation of b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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