9911796707
TMI Blog2022 (7) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... d T-RMC including its suppliers / contractors / vendors / employees / workers / staffs or any other entities whatsoever. It is further directed that the Resolution Applicant shall not be in any manner liable to take any responsibility and/or liability in respect of the said T-RMC including its suppliers / contractors / vendors / employees / workers / staffs or any other entities whatsoever. Though the Valuation Report shows that the fair rent for the subject land/premises of the Corporate Debtor should be Rs.4.85 lakh but for the ends of justice, it is ordered that the said T-RMC shall make a further payment to the Corporate Debtor at the rate of Rs.2,00,000/- per month to be calculated from the date of creation of such tenancy in its favour till the date of handing over peaceful vacant possession of the land to the Resolution Applicant within the period stipulated above. In the event of failure to make such payment within the stipulated period, the Corporate Debtor and/or the Resolution Applicant shall be at liberty to claim and realise mesne profit from T-RMC at such rate as may be reasonably decided by the Corporate Debtor and/or the Resolution Applicant. Application a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vested in the Corporate Debtor; d. An order directing the respondents not to obstruct the sole and exclusive physical possession of the said land by the RP, the Applicant herein; Direction upon the local district administration being the officer-in-charge of concerned police station Rajarhat a SRCM Road, Rajarhat and Bidhannager Police Commissionerate, to give proper assistance to the Applicant in taking possession of the said land so as to discharge his duties under the Code in furtherance of the CIRP of the Corporate Debtor; An order be passed directing and/restricting to remove any material or assets which is kept at the said land of the Corporate Debtor; e. An order directing the respondents to pay Rs. 292.40 lakhs in respect of benefits received by T-RMC Private Limited from the Corporate Debtor during the period from 27.07.2014 to Insolvency Commencement Date on 18.03.2020, to the Resolution Professional; f. An order under section 49 of the Code restoring the position as it existed before any so called rent agreement was entered into as if the transaction has not been entered into; g. Such other order providing relief under section 49 of the Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cified forms till 01.04.2020. 7. The RP has filed these two interlocutory applications being I.A. (IB) 107//KB/2021 and I.A. (IB) 1302//KB/2020 IN C.P. (IB) No. 438/KB/2018 seeking eviction of T-RMC Private Limited from the land/premises of the Corporate Debtor inter alia on the ground that the Corporate Debtor had entered into purported tenancy agreements in favour of T-RMC at a grossly undervalued monthly rent of Rs.55,000/- to defraud the secured creditors and to create third party interest after issuance of Notice under SARFAESI by the Secured Creditor. 8. In support of the said two interlocutory applications, the RP has argued that - (a) Castal Extrusion Pvt. Ltd. ( CEPL ), the Corporate Debtor ( CD ), had provided Corporate Guarantee on 06.05.2013 securing repayment of the loan availed by Tantia Construction Limited ( TCL ) from Vijaya Bank (now Bank of Baroda). Due to failure by TCL to meet its liability, the Financial Creditor ( FC ) invoked the Corporate Guarantee. In March 2018, the FC had filed an application u/s 7 of IBC, 2016 against CEPL. The said application was admitted on 18.03.2020 directing insolvency commencement in respect of CEPL and Applicant was ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the FC prior to creation of the lease over the subject land, and the said purported Rent Agreements falsely mentioned that the said land was free from all encumbrances in any manner whatsoever. (g) By way of the present applications, RP sought to assail the purported tenancy entered into by and between the CD and T-RMC under, inter alia, the provisions of Section 45 and 49 of the Insolvency and Bankruptcy Code, 2016 ( IBC and/or the Code ). The RP submitted opined that the purported lease was created (i) to defraud the creditors so as to keep the subject land beyond the reach of the creditor of the CD and (ii) at a gross undervalued, and therefore constitutes a transaction defrauding the creditors within the meaning of Section 49 of IBC and an undervalued transaction within the meaning of Section 45 (2) of the IBC. To audit and confirm such apprehended PUFE transaction as per the Code, the RP had appointed Chartered Accountant to conduct Transaction Audit of the books of accounts of the CD on 09.10.2020. The said Transaction Auditor submitted its Report on 23.12.2020 confirming undervalued transaction. (h) As per the Audit Report, the fair rent of the said land w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Rs.4.85 lakh instead of Rs.55,000/- and as such there was a shortfall of Rs.4.30 lakh per month. 9. The RP has further submitted as under referring to various provisions of the CODE and Judgments: (a) The impugned transaction of the subject land of the CD has been divested to T-RMC by way of the purported Agreement was a transaction to defraud the secured creditor having a security interest over the subject land. (b) The said transaction was undertaken in the following backdrop: The principal borrower TCL, defaulted to repay the loan to Vijaya Bank as a result of which the loan account was declared as NPA on 10.03.2014. The CD was the Corporate Guarantor of TCL and had furnished the subject land as security for repayment of TCL s loan to Vijaya Bank. At the relevant time, CD was under the common control and management of the Tantia Family, the promoters of TCL, the principal borrower. Upon declaration of TCL s account as NPA, the creditor issued notice under Section 13(2) of SARFAESI Act on 10.03.2014. Soon after issuance of the notice under Section 13(2) of the SARFAESI Act, T-RMC (initially named Tantia RMC Pvt. Ltd.) was incorporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r value of annual rent, arrived at on the basis of rate of return on the current bank rate on G-Sec of 6.86% is found to be Rs. 4.85 Lakhs/ Month, thereby leaving a shortfall of Rs. 4.30 Lakhs/ Month on account of the undervalued transaction. (j) The impugned transaction cannot be deemed to have been entered into the ordinary course of the business of the CD as the CD is not a property company earning revenue from the business of leasing/renting out its premises. As such, any contention to the effect that an arrangement of lease/tenancy in relation to its principal asset is a transaction in ordinary course of the business of CD is a non-starter. (k) A transaction designed to vest unwarranted benefit to a related third party under common control of the promoters of CD can in no circumstance fall within the exception to Section 45 (2) of IBC. Only a bona fide transaction intended to enhance the value/ worth of the CD without any taint of favour to any party could come within the purview of the exception as held in by the Hon ble Supreme Court of India in Anuj Jain v. Axis Bank Ltd. Ors., (2020) 8 SCC 401 @ prs. 28.2-28.6. (l) The applications filed correctly withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authorities, Local Authorities and all other Statutory Authorities to provide full co-operation and assistance as may be required and sought for by the Resolution Applicant. 14. Though the Valuation Report shows that the fair rent for the subject land/premises of the Corporate Debtor should be Rs.4.85 lakh but for the ends of justice, it is ordered that the said T-RMC shall make a further payment to the Corporate Debtor at the rate of Rs.2,00,000/- per month to be calculated from the date of creation of such tenancy in its favour till the date of handing over peaceful vacant possession of the land to the Resolution Applicant within the period stipulated above. In the event of failure to make such payment within the stipulated period, the Corporate Debtor and/or the Resolution Applicant shall be at liberty to claim and realise mesne profit from T-RMC at such rate as may be reasonably decided by the Corporate Debtor and/or the Resolution Applicant. The Corporate Debtor and/or the Resolution Applicant shall be at liberty to take appropriate step against T-RMC for their eviction and realisation of the said dues in the event their failure to comply this order. The said I.A. (IB) 107/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
