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TMI Blog2022 (3) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... see had to take prior permission of the Lessor for transferring the Plot to a third party or for creating any interest of a third party in the Plot. Further, no permission from the Applicant was taken to enter into the Collaboration Agreement; therefore, it is non-est in the eyes of law and is an instrument of fraud to deprive Applicant of the rights over the Plot as a Lessor - The Clause II (h) of the Lease Deed provides for construction of the building and development on the property had to be done as per development norms and controls prescribed under the Scheme/Building regulations and as per the directions of the Lessor. The Applicant has referred to the Clause III of the Lease Deed and other clauses which provide for obtaining prio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 11, 23 and 43 of National Company Law Tribunal Rules, 2016 (Rules, 2016). The reliefs sought by the applicant are as under: a. Direct the Respondent to not accept any resolution plans which propose a composite Scheme for the Corporate Debtor and M/s. Brys International Pvt. Ltd. b. Grant a stay on the voting of the resolution plan which has been submitted by M/s. E-Homes Infrastructure Pvt. Ltd. in the CIRP of the Corporate Debtor. c. Any other relief or reliefs as this Authority deems fit. Brief Facts:- 2. A Lease Deed was executed between the Applicant and M/s. Logix Builders Promoters Put Ltd. on 17.01.2012, for a period of 90 years, with respect to a plot of land admeasuring 2,69,430 sq. mtrs, located at Commercial P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed it claim as a Financial Creditor which was accepted by the Respondent in the third Committee of Creditors Meeting held on 15.05.2019. Submissions of the Applicant 5. It is submitted by the Applicant (NOIDA) that the Prospective Resolution Applicant (PRA) viz., M/s. E-Homes Infrastructures Pvt. Ltd., submitted a composite resolution plan for the Corporate Debtor and M/s. Brys International, which was to be evaluated by CoC of both the Companies. It is further stated that the Report submitted by the Legal counsel for the Respondent that the acceptance of the plan for the Corporate Debtor is contingent on the acceptance of the resolution plan for M/s. Brys International and the plans have been submitted as a composite scheme which sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discussed in the 10th CoC Meeting, held on 02.11.2019, and it is the apprehension of the Applicant that if the CoC puts the proposed resolution to vote and is accepted with a 75% majority, then the Applicant shall be gravely prejudiced. Reply of the Respondent/Resolution Professional 7. The Respondent has filed its reply to the application on 10.12.2019 and submitted that the CIRP of the Corporate Debtor and of the other connected Corporate Debtor viz., M/s. Brys International P. Ltd. has been carried out in a consolidated manner without any Order of consolidation of the Adjudicating Authority. The two processes were carried out separately, which includes constitution of two separate CoCs, holding and convening separate meetings, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the building and services by an alternate agency, to the initial aspect of implementation of the project itself, which is not the intent of the said para. The first sentence of this para deals with two separate aspects i.e., (i) implementation of the project for which the sublessee is wholly and solely responsible, including quality of development/construction and (ii) subsequent (meaning post construction) maintenance of the building and services. The stipulation of alternate agency for such work to be identified as legally appointed after written approval of the lessor pertains to the activity of maintenance of the building and services, as per the prevalent industry norms and does not pertain to the initial implementation of the proj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Scheme can be considered? It is the case of the Applicant that there are no other provisions for creating any interest whatsoever in favour of a third party, other than the ones that are provided in the Lease and the Sub-Lease Deeds, therefore, the Respondent has violated the terms provided under the Lease Deed as well as the Sub Lease Deed as the Lessee had to take prior permission of the Lessor for transferring the Plot to a third party or for creating any interest of a third party in the Plot. Further, no permission from the Applicant was taken to enter into the Collaboration Agreement; therefore, it is non-est in the eyes of law and is an instrument of fraud to deprive Applicant of the rights over the Plot as a Lessor. The Applican ..... X X X X Extracts X X X X X X X X Extracts X X X X
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