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TMI Blog2024 (4) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... ging the order dated 24.07.2023 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi Bench, Court II in I.A. No.4869 of 2022 filed by Greater Noida Industrial Development Authority. By the impugned order the I.A. filed by Greater Noida Industrial Development Authority was disposed of holding the Applicant to be treated as Secured Operational Creditor. Aggrieved by said order, the Resolution Professional of the Corporate Debtor - M/s Primrose Infratech Private Limited has come up in this Appeal. Company Appeal (AT) (Ins.) No.1519 of 2023 has been filed challenging the order dated 30.08.2023 passed by Adjudicating Authority (National Company Law Tribunal), New Delhi Special Bench (Court II) in I.A. No.4588 of 2023, which was filed by New Okhla Industrial Development Authority. I.A. No.4588 of 2023 has been disposed of in view of the order passed in I.A. No.4869 of 2022. The order dated 30.08.2022 is thus passed on order passed on I.A. No.4869 of 2022 against which Company Appeal (AT) (Ins.) No.1147 of 2023 has been filed, as noted above. For deciding both the appeals it is sufficient to notice the facts and issues of Company Appeal (AT) (Ins.) No.1147 of 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and IBC 2016, hence the provisions of Section 238 of IBC, 2016 do not get attracted to." 4. The conclusion recorded by the Adjudicating Authority is that the Greater Noida Authority is held to be Secured Creditor. The Resolution Professional aggrieved by the said order declaring GNIDA as Secured Creditor has come up in this Appeal. 5. Submissions raised by the Resolution Professional objecting to the claim of the GNIDA as Secured Creditor was noticed and dealt by the Adjudicating Authority in the impugned order. The Adjudicating Authority relying on the Section 13 and 13-A of the Uttar Pradesh Industrial Area Development Act, 1976 held that charge of GNIDA in the instant case has been created by virtue of law. The submission that provision of Section 13 and 13-A of UPIAD Act are inconsistent with Section 238 of I&B Code was also dealt with and rejected. 6. Learned counsel for the Appellant challenging the order impugned submitted that Greater Noida Authority is not a Secured Creditor and the Adjudicating Authority committed error in holding the GNIDA is a Secured Creditor. Learned counsel for the Appellant submits that Section 13-A was enforced five years after Lease Deed was ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been approved has filed I.A. No.344 of 2021 questioning the Resolution Plan and decision of the Resolution Professional to treat the Appellant as Operational Creditor. Another I.A. was filed to recall the order dated 04.08.2020. NCLT rejected both the applications against which Appeals were field before Appellate Tribunal. Appeals were also dismissed by this Appellate Tribunal. Before the Hon'ble Supreme Court submission was advanced by the Appellant that Appellant is a Secured Creditor. Hon'ble Supreme Court in the appeal held that recall application was maintainable and further held that Appellant was a Secured Creditor. Hon'ble Supreme Court after noticing the provision of Section 13-A of 1976 Act observed that non-placement of Appellant in the class of Secured Creditor did affect its interest, which question was not addressed by NCLT and NCLAT. In Para 54 and 55 following was held: " 54. In our view the resolution plan did not meet the requirements of Section 30(2) of the IBC read with Regulations 37 and 38 of the CIRP Regulations, 2016 for the following reasons : a. The resolution plan disclosed that the appellant did not submit its claim, when the unrebutted case of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and equitable to each class of creditors. Non-placement of the appellant in the class of secured creditors did affect its interest. However, neither NCLT nor NCLAT noticed this anomaly in the plan, which vitiates their order. c. Under Regulation 38 (3) of the CIRP Regulations, 2016, a resolution plan must, inter alia, demonstrate that (a) it is feasible and viable: and (b) it has provisions for approvals required and the time-line for the same. In the instant case, the plan conceived utilisation of land owned by the appellant. Ordinarily, feasibility and viability of a plan are economic decisions best left to the commercial wisdom of the COC. However, where the plan envisages use of land not owned by the CD but by a third party, such as the appellant, which is a statutory body, bound by its own rules and regulations having statutory flavour, there has to be a closer examination of the plan's feasibility. Here, on the part of the CD there were defaults in payment of instalments which, allegedly, resulted in raising of demand and issuance of pre-cancellation notice. In these circumstances, whether the resolution plan envisages necessary approvals of the statutory authority is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority under section 13 shall constitute a charge over the property and may be recovered as arrears of land revenue or by attachment and sale of property in the manner provided under sections 503, 504, 505, 506, 507, 508, 509, 510, 512, 513 and 514 of the Uttar Pradesh Municipal Corporations Act, 1959 (Act no. 2 of 1959) and such provisions of the said Act shall mutatis mutandis apply to the recovery of dues of an authority as they apply to the recovery of a tax due to a Municipal Corporation, so however, that references in the aforesaid sections of the said Act to 'Municipal Commissioner', 'Corporation Officer' and 'Corporation' shall be construed as references to 'Chief Executive Officer' and 'Authority' respectively; Provided that more than one modes of recovery shall not be commenced or continued simultaneously." 12. Any dues of the Authority is a charge as per Section 13-A over the property. The Corporate Debtor has not paid the dues of Respondent - GNIDA, which has been brought before the Adjudicating Authority by means of an application giving all relevant details. In the present case, the Adjudicating Authority returned finding tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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