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TMI Blog2023 (10) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... [ Arun Baroka ] Member ( Technical ) For the Appellant : Ms. Swati Dalmia and Mr. Palzer Moktan , Advocates For the Respondents : Mr. Alok Dhir and Ms. Varsha Banerjee , Advocates. Mr. Gaurav Mitra , Mr. Shashank Agarwal , Mr. Ishan Roy Choudhury , Mr. Adit Singh, Advocates for R - 2 JUDGEMENT Per : Arun Baroka , Member ( Technical ) 1. The present appeal has been filed against the order dated 4th July, 2023 passed by the National Company Law Tribunal, Kolkata Bench II (hereinafter referred as to the Adjudicating Authority) in IA (IB) No. 1007/KB/2023 filed by M/s. Victory Iron Works Pvt. Ltd. (Respondent No.1 herein). 2 Briefly the case brought out by the Appellant is that Respondent No.1 filed an application being IA (IB) No. 1007 of 2023 in CP(IB) No. 372/KB/2019 seeking the following reliefs: a. Allow the instant application. b. Direct Respondent No.1 to not interfere in the peaceful physical possession of area consisting of 10000 sq. ft. of land situated at Khatian No. 1523.1524 in Mouza Ramrajatala Thana Jogacha, District Howrah, West Bengal along with right of ingress of Containers of exportable goods and movement of all vehicles fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Corporate Debtor agreed to invest in the Respondent No.2 in the manner and subject to the terms and conditions contemplated in a MOU executed between the Corporate Debtor, the Respondent No.2 and the then shareholders of the Respondent No.2 on 24.01.2008. 4.3 It was understood and agreed between the aforesaid parties, that the Corporate Debtor would disburse an amount of Rs.2.70 Crores to UCO bank for and on behalf of Respondent no.2 to facilitate the purchase of the said land by Respondent No.2. Further an additional amount of Rs. 9.30 Crores was required to be paid by the Corporate Debtor to Respondent No.2 for the purpose of liquidation of all liabilities of the Respondent No.2 and for obtaining vacant possession of the said land in favour of the Corporate Debtor. Moreover, an amount of Rs. 3.50 Crores was advanced by the Corporate Debtor to Respondent No.2 over and above the amount of 12 crores already remitted by the Corporate Debtor. For the purpose of protecting the interest of the Corporate Debtor, including repayment of the amount disbursed by the Corporate Debtor to the tune of around Rs. 12 Crores, it was agreed that 40% shares of the Respondent No.2 would be tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Possession -II) which expressly recorded handing over of possession of the remaining portion of the Said Land which had not been handed over at the time of execution of the Memo of Possession-I. Further said Memo of Possession noted that the Corporate Debtor would be entitled to proceed with the development activity subject to the terms and conditions contained in the Development Agreement. 4.8 However, although the exclusive possession of the Said Land was handed over to the Corporate Debtor, the Respondent No.2 neglected and failed to fulfil its obligation/condition precedents, as entailed under the terms of the Development Agreement including failure to provide clear and marketable title of the said land, IRD clearance from the competent authority under the urban land (ceiling and Regulation Act), 1976 in respect of the said land which were absolutely critical and imperative for the Corporate Debtor for the purposes of commencing any development works on the said land. 4.9 Since the land was lying vacant and idle it was decided that a portion admeasuring 10,000 sq ft. of the said land (licensed Area) would be licensed to Victory Iron Works Ltd., i.e. Respondent No.1 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al being CA(AT) (Ins) No. 377 of 2020 and CA(AT) (Ins) No. 508 of 2020 and the same were dismissed vide common judgment and order dated 08.04.2021. Thereafter, the Respondent no.2 and 1 preferred two separate Civil Appeals against the aforesaid judgment and the order dated 08.04.2021 which were dismissed vide common order dated 14.03.2023 by the Hon ble Supreme Court in Civil Appeal No. 1743 of 2021, with the following findings: 37. Therefore, it is not very difficult to conclude, that a bundle of rights and interests were created in favour of the Corporate Debtor, by a series of documents such as (i) the MoU dated 24.01.2008; (ii) the shareholders agreement dated 24.01.2008; (iii) the flow of the consideration from the Corporate Debtor to the UCO Bank and to Energy Properties; (iv) the Development Agreement dated 16.06.2008; (v) the Memorandum Recording Possession dated 02.03.2010 executed by the original shareholders of Energy Properties; (vi) the Memorandum Recording Possession dated 24.06.2010 executed by Energy Properties in favour of the Corporate Debtor; and (vii) the Leave and License Agreement primarily executed by the Corporate Debtor in favour of Victory, which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the License Area i.e. a portion of the land admeasuring 10,000 sq. ft. approx. out of the entire 10.19 acres of the land for a period of 11 months on the terms as agreed upon in the said agreement. 4.13 It is pertinent to mention here that there are two entry points for entering the said land. One is situated adjacent to the Licensed Area admeasuring around 10,000 square feet which is currently in use by the Respondent No.1, and another is situated at the far end of the portion of the land which is in use by the Respondent No.1. After taking possession of the said land measuring 10.19 acres, the Appellant in order to free the said land from all encumbrances to make it marketable with the aim of inviting better Resolution Plan(s), provided Respondent no.1 complete unhindered access to the Licensed Area which is currently in use by the Respondent No.1 4.14 Despite offering unrestricted egress and ingress to big vehicles including containers carries and trucks, Respondent No.1 filed an application being IA (IB) No. 1007 of 2023 in CP(IB) No. 372/KB/2019 seeking the following reliefs described in supra. 5 Appellant claims that by way of the aforesaid order, the Adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Authority. 9 Learned Counsel for the Appellant has submitted that although the CIRP of the Corporate Debtor commenced on 15.10.2019, Respondents by its aforesaid actions have successfully delayed the CIRP of the Corporate Debtor for almost four years already. It is further stated that currently the Corporate Debtor is at the cusp of Resolution process, wherein the CoC are currently evaluating several resolution plans. Essentially, Respondent No.1, by moving the Adjudicating Authority by way of the application under Section 60(5) of the Code being IA (IB) No. 1007 of 2023, sought to urge misplaced and factually inaccurate grounds. Specifically, easementary rights and its alleged infringement were pleaded in the said application along with alleged infraction of its fundamental right. Moreover, it is submitted that Respondent No.1 pressed into service Section 13(e) of the Indian Easement Act, 1882 before the Adjudicating Authority at the time of hearing the aforesaid application and it was after taking into consideration the said provision that the Adjudicating Authority, at an ad interim stage, before the Appellant was even permitted to file its response, pleased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Adjudicating Authority in exercise of its jurisdiction under the Code, pass an order whilst considering provisions of the Indian Easement Act, 1882. Second, could the Adjudicating Authority have passed an order virtually allowing the application and its first substantive relief. Submissions of Respondent No.1 12 Ld. Counsel for the Respondent No.1 in his written submissions denies in toto the contents of Appeal. He submits that the appeal under reply has been filed prematurely by the Appellant as the Adjudicating Authority in the impugned order has only given legal recognition to the Respondent No.1 s right to access the property as he was enjoying during the operation of the order dated 12.02.2020 as passed by the Adjudicating Authority and order dated 04.03.2020 passed by this Tribunal. The Impugned order does not issue any new direction and thus, the Appellant at this stage cannot be said to be aggrieved by the impugned order. It is noteworthy that the Appellant did not challenge the order dated 12.02.2020 as passed by the Adjudicating Authority in CA No. 1807/2019, order of this Tribunal dated 04.03.2020 and 08.04.2021 and hence, the said order have attained fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent no.1 challenged the order of Adjudicating Authority dated 12.02.2020 before this Tribunal in Company Appeal No. 508 of 200. The Respondent No.2 had also filed an appeal before this Tribunal being Company Appeal No. 377 of 2020, wherein the Respondent no. 1 herein was arrayed as Respondent No.3. This Tribunal vide order dated 04.03.2020 directed the parties to maintain status quo i.e. the Appellant was restrained from disturbing the possession of the Respondent No.1 herein on the aforementioned land. 16. It is also submitted that para 4 5 of the aforementioned order dated 04.03.2020, demonstrates that the Appellant himself has admitted that the respondent No.1 is in the possession of the 10,000 sq. fts of the aforementioned land if not the whole. Further, this Tribunal vide order dated 08.04.2021, dismissed the Appeal of the Respondent no. 1 herein and also upheld the direction of the Adjudicating Authority that the possession and occupation of the Respondent herein over the land of the extent of 10,000 sq ft. covered by the Leave and License Agreement dated 11.08.2011, shall continue to be enjoyed by the Respondent without any interference from the Appellant. The Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess the property has to be provided to the concerned person. Herein, the main entrance is the necessary easement for the Respondent 1 to access and enjoy his possessory right over the 10000 sq. ft. and therefore the act of the Appellant, deliberately trying to unearth schemes and strategies to harass and agitate the Respondent 1 is not only unacceptable but also bad in law. Section 13(e) of the Easement Act, 1882 has been reproduced by the Respondents: (e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or 19. The Respondent has also given details of various appeals filed at various levels of Adjudicating Authority, Appellate Authority and Hon ble Supreme Court which are not repeated again as the same were already discussed supra. Observations and findings 20. Basis the appeal and also the written and oral submissions of Appellant and Respondents, it emerges that : 20.1. Hon ble Supreme Court vide its Judgment dated 14.03.2023 recognizes Respondent No 1 (M/s Victory Iron Works Ltd.) as a licensee only with respect to the demarcated area of 10,000 Sq. feet o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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