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TMI Blog2022 (4) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... of auction purchaser does not obviate the consideration of transfer of Application as per the existent Policy namely the Policy Procedure for Institutional Property Management March, 2009. The Adjudicating Authority ought to have issued direction to consider the Transfer Application for transferring the auctioned Plot in accordance with the existent Policy - the direction of the Adjudicating Authority issued in paragraph 8(a) has to be read to mean that Adjudicating Authority directed the Appellant to consider the transfer of the Plot and expression shall transfer need not be read to mean that the Appellant has to transfer the Plot without the Respondent complying with the requirements of the Transfer Policy. The Application dated 16.02.2022 filed by the Respondent in terms of existent Transfer Policy be considered by the Appellant on merits in accordance with law - Appeal disposed off. - Company Appeal ( AT ) ( Insolvency ) No. 998 of 2021 - - - Dated:- 19-4-2022 - [ Justice Ashok Bhushan] Chairperson , [ Dr. Alok Srivastava ] Member ( Technical ) And [ Ms. Shreesha Merla ] Member ( Technical ) For the Appellant : Mr. Sourav Roy , Mr. Prabudh Singh and Mr. Kaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Structures LLP was ranked H1. The Appellant on 05.03.2021 again wrote to the Liquidator that amount due against the Plot No.02/2 is ₹ 40,50,108/-. (v) The Liquidator filed an Application being I.A. No.1612 of 2021 before the Adjudicating Authority praying for following relief: a. Direct the Respondent to transfer the Plot No.02/2 at Sector 154, Gautam Buddha Nagar, Uttar Pradesh-201310 ( Noida Property ) in favour of Groovy Structures LLP, the Highest Bidder; b. Issue directions to the Respondent to file Claim Form for payment of pending dues towards lease rent and interest as per provisions of the Insolvency and Bankruptcy Code, 2016; c. Pass such other order/s as this Hon ble Tribunal may deem fit and proper in the facts and circumstances of the instant case. (vi) The Application was objected by the Appellant. In the reply, the Appellant stated that there is policy for transfer of the institutional property, which also contemplate payment of transfer charges to the extent of 10% of the current allotment premium of the Plot and there are several other conditions of transfer. In the reply, however, it was stated that Respondent (Appellant before us) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Adjudicating Authority to file its claim before the Liquidator. The learned Counsel submits that the observation of the Adjudicating Authority that under Section 238, the provisions of the Code shall override any provisions of regulating the transfer of the subject Plot is not as per law. Section 238 of the IB Code does not override the relevant provisions of regulating the Transfer Policy by the Appellant, since there is no conflict between provisions relating to Transfer Policy and IB Code. Learned Counsel for the Appellant submits that the Appellant is ready to consider the Transfer Application in accordance with Policy as stated above. He further submits that although Application has been received for Transfer as per Transfer Policy, but the same was not considered and was rejected by the Appellant due to pendency of this Appeal. 5. Learned Counsel for the Respondent refuting the submissions of the learned Counsel for the Appellant submits that Appellant has been insisting for payment of their earlier dues amounting to ₹ 40,50,148/-. The Appellant being an Operational Creditor for its dues prior to CIRP, they are entitled to file their claim before the Liquidator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has come up with a case that Respondent is ready to comply with all the Policy in relation to transfer of the above property. In paragraph 40(a.) of the reply, following is pleaded by Respondent: 40.(a). That it is to be submitted that the Respondent is ready to comply with all the Policy in relation to the transfer of the Noida Property and in this regards have signed the Transfer Memorandum of the Noida Property along with the Auction Purchaser. The copy of Transfer Memorandum is annexed herewith and marked as Annexure R/11. 10. It is also been brought on record that Respondent has submitted a Transfer Application on 16.02.2022 in the format prescribed as per the Transfer Policy, which Noida Authority has rejected on 03.03.2022 on the ground of pendency of Court cases. The learned Counsel for the Appellant, however, submits that Appellant is ready to consider the said Application in accordance with the Transfer Policy. The learned Counsel for the Appellant submits that the direction issued by the Adjudicating Authority in the mandatory form, ought to be deleted with liberty to the Appellant to consider the Application in accordance with Transfer Policy. 11. The lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng winding-up proceedings before the High Court. It was open for Respondent 3 at any time before a winding-up order is passed to apply under Section 7 of the Code. This is clear from a reading of Section 7 together with Section 238 of the Code which reads as follows: 238. Provisions of this Code to override other laws.-The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. 20. Shri Dave's ingenious argument that since Section 434 of the Companies Act, 2013 is amended by the Eleventh Schedule to the Code, the amended Section 434 must be read as being part of the Code and not the Companies Act, 2013, must be rejected for the reason that though Section 434 of the Companies Act, 2013 is substituted by the Eleventh Schedule to the Code, yet Section 434, as substituted, appears only in the Companies Act, 2013 and is part and parcel of that Act. This being so, if there is any inconsistency between Section 434 as substituted and the provisions of the Code, the latter must prevail. We are of the view that NCLT was absolutel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Area Development Act, 1976. We, thus, are of the opinion that the order of NCLT allowing the Application filed by the Liquidator regarding transfer of Plot in favour of auction purchaser does not obviate the consideration of transfer of Application as per the existent Policy namely the Policy Procedure for Institutional Property Management March, 2009. The Adjudicating Authority ought to have issued direction to consider the Transfer Application for transferring the auctioned Plot in accordance with the existent Policy. We, thus, are of the view that the direction of the Adjudicating Authority issued in paragraph 8(a) has to be read to mean that Adjudicating Authority directed the Appellant to consider the transfer of the Plot and expression shall transfer need not be read to mean that the Appellant has to transfer the Plot without the Respondent complying with the requirements of the Transfer Policy. The Respondent having already made an Application on 16.02.2022 in the prescribed proforma and is ready to comply all the terms and conditions of the Policy, the Appellant may consider the Application made on 16.02.2022 on merits and take an appropriate decision at an early d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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