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TMI Blog2022 (11) TMI 1125X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. U.N. Singh, Advocates For the Respondent No. 1 : Mr. Aditya Madaan & Mr. G.P. Madaan, Advocates for R-1 For the Respondent No. 2 : Mr. Alok Dhir, Ms. Varsha Banerjee & Mr. Kanishk Khetan, Advocates for R-2 JUDGEMENT [ Per ; Shreesha Merla, Member (T) ] 1. Aggrieved by the Order dated 05.04.2021 passed in I.A.1380/2021 and in I.A.344/2021, in (IB)-272(PB)/2019 passed by the Learned Adjudicating Authority (National Company Law Tribunal, New Delhi, Principal Bench), Greater Noida Industrial Development Authority preferred this Appeal. By the Impugned Order, the Adjudicating Authority has dismissed I.A.1380/2021 preferred by the Appellant/Greater Noida Industrial Development Authority ('G. Noida') on the ground that Noida has not taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Leasehold Property to raise buildings and subsequently to execute Sale Deeds in favour of the Homebuyers vide Tripartite Transfer Deeds. Under the Lease Deed, the consideration by which in lieu of grant of Leasehold Rights consist of two components i.e., premium to be paid by the Lessee either in instalments along with interest or as an annual Lease Rent to be paid every year or to pay Lease Rent equivalent to 11 years at 1% per year equivalent to the 11% of the total premium of the plot has One Time Lease Rent. The premium payable by the Lessee is equivalent to the fair value of the Leasehold Rights. Therefore, the claim made by the Appellant ought to be treated as a 'Financial Debt'. As per the Lease Deed dated 28.10.2020, the total con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t' in section 5(8) of IB Code then goes on to state that a debt must be disbursed against the consideration for the time value of money...." "The definition of 'financial debt' in section 5(8) of the Code then goes on to state that a "debt" must be "disbursed" against the consideration for time value of money." * It is submitted that the RP did not include the claim of G. Noida in the Information Memorandum despite the fact that the Appellant is owner of the said land. 3. Submissions of the Learned Counsel for the Resolution Professional ('RP'): * It is submitted by the Resolution Professional that though Noida was put to notice with respect to the claims to be filed and CRP was initiated on 30.01.2020, and the Plan was approved on 04. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt under a law, viz., the UPIAD, read with Section 40 of the UP Act of 1973, made applicable to the UPIAD. Upon this Court pointing out the decision of this Court reported in New Okhla Industrial Development Authority v. Chief Commissioner of Income Tax, wherein this Court has taken the view in the case of the appellant itself, that it is not a Local Authority. The parties would point out that the said Judgment, may not apply, as it was rendered in the context of the Income Tax Act. It is also pointed out that Judgments, which have been rendered after R.C. Jain (supra), which includes Housing Board of Haryana v. Haryana Housing Board Employees' Union and Commissioner of Income Tax, Lucknow v. U.P. Forest Corporation, are also distinguis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes point out that the words 'arising under any law', may not be the same as amounts being made recoverable under a law. Of course, she would point out that as far as the rental part of the claim, it may be relatable to the first limb of an operational debt. When questioned further, as to what her position is, if this Court found that the appellant is not a financial creditor, the appellant may be entitled, at least, to be treated as an operational creditor. We would think that, having regard to the fact that both the NCLT and NCLAT have proceeded on the basis that the appellant is an operational creditor, we need not stretch the exploration further and pronounce on the questions, which may otherwise arise. We must not be oblivious to the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 04.08.2020 and the SRA sent a letter dated 24.09.2020 seeking implementation of the Plan. Subsequently, only on 06.10.2020 the Appellant filed IA 344/2021 seeking relief Qua the rejection of claims and preferred I.A. 1380/2021 on 15.03.2021 seeking recall of the Order. We are of the considered view that Noida did not exercise its right in filing its 'Claim' on time and has belatedly challenged the rejection after the approval of the Resolution Plan. On a query from the Bench, as to whether any provision was made in the Resolution Plan for the dues of Noida, the Counsel for the SRA submitted that the outstanding amount is reflected in the Books of Accounts of the 'Corporate Debtor' and shown in the Information Memorandum and were dealt wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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