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TMI Blog2024 (10) TMI 1408X X X X Extracts X X X X X X X X Extracts X X X X ..... P. The same was allowed by the Tribunal. It was argued by the Appellant in that case that the Adjudicating Authority has erred in applying explanation of Section 14(1)(d) for allowing the application because the said explanation is not applicable and thus the question was framed by this Court as to whether the explanation under Section 14(1)(d) of the Code for the purpose of directing the Appellant to pay the lease premium amount and the lease rent to the Respondent is applicable?. This court in the decided case has held that explanation is not applicable because the premium amount or lease rent is not part of Section 14(1)(d) which cannot be read as similar grant or right which has to be in respect of the license, permit, registration, quota, concession, clearance etc. but not with premium amount or lease rent. The order passed in the case of Sunil Kumar Agarwal [ 2023 (1) TMI 552 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] applies to this case also even though the said decision has been challenged by the Noida by way of Civil Appeal No. 901 of 2023 before the Hon ble Supreme Court in which notice has been issued but stay has not been granted. It canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estrained for future instalments, penalties for deviations, lease rents etc. for future. The relevant extract of the clause relied by the objector no.3 and objector no.4 is reproduced as below:- This plan proposes to pay NIL amount to Departments as the liquidation value accruing to them would be NIL. Also, if any further claim of any government authority such as NDA, GNIDA, Electricity department etc is received then that shall also be paid in NIL. b) The objector no.3 and objector no.4 further submits that the lease premium and lease amount due during the CIRP period of the corporate debtor should form part of the CIRP cost in line with Regulation 31 of the CIRP Regulations, 2016. c) The objector no.3 further submits that NOIDA Authority vide notice dated 05.07.2022 had claimed the outstanding lease rental and premium of Rs.13,84,40,999/-. which was due and unpaid after the cut-off date 31.01.2019 i.e., date up to which the claim of the NOIDA Authority has been admitted. The objector no.3 adds that the demanded claim of Rs.13,84,40,999/- is exclusive of the interest and penalty. 6. The AA while allowing the application filed by the RP, dealt with the objections raised by Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No. 2 and 3 have been secured in the resolution plan because as per clause 8.9 of chapter VIII of the resolution plan, the Appellants have proposed to pay Rs. 25 Cr. to Respondent No. 2 and Rs. 18.50 Cr. to Respondent No. 3. It is further submitted that the plan already includes the CIRP cost as ratified by the CoC which is to be paid in priority to other creditors as per Clause 8.3, Chapter VIII of the resolution plan, but on the basis of the impugned order, Respondent No. 2 filed the claim dated 20.09.2022 with the RP amounting to Rs. 27,65,02,686/-. The breakup of the total amount claimed by Noida is as under:- S. No. Component of Claim Dues after 12.09.2022 Amount (INR) 1. Due amount in instalment 8,64,39,102/- 2. Due amount w.r.t. interest on instalment 4,38,20,789/- 3. Due amount on land rate 2,53,80,850/- 4. Due amount w.r.t. interest on land rent 74,17,237/- Total dues after 12.09.2022 (I) 16,30,57,978/- Liability of time extension dues till 12.09.2022 1. Second year @ 5% from 01.03.2019 to 29.07.2019 (5 months) 96,13,958/- 2. Third year @ 6% from 30.07.2019 to 29.07.2020 96,13,958/- 3. Fourth year @ 7% from 30.07.2020 to 29.07.2021 3,23,02,900/- 4. Fifth year @8% from 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 14(1)(d) . It is argued that Section 14(1)(d) specifically prohibits the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the CD during the CIRP period and explanation ensues that the owner/lessor is not permitted to suspend/terminate the said lease/license granted in favour of the CD on the grounds of insolvency, provided that there is no default in payment of current dues arising from the use or continuation of the said lease/license etc. 13. It is further submitted that since the right of Respondent No. 2 to cancel the lease during the moratorium period is prejudicially effected and their due amount is not granted in their favour as CIRP costs then they can terminate the lease as per explanation to Section 14(1)(d) of the Code. 14. He has further submitted that the judgment in the case of Sunil Kumar Agrawal (Supra) is in appeal before the Hon ble Supreme Court but there is no stay and secondly that the decision in the case of Mathuraprasad C. Pandey (Supra) is not applicable because the Tribunal has not altered or modified the resolution plan approved by the CoC , the inclusion of lease rental and lease premium ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted by the Appellants was based on the IM as prepared by the RP and the economic conditions prevalent during the year 2019. The Appellants have duly catered to the claims of Noida and GNIDA in the resolution plan as it has proposed to pay Rs. 25 Cr. to Noida in six equal half yearly instalments and the first instalment is to be paid after a period of six months from the implementation date. With respect to the dues of GNIDA for which no formal claim has been filed, the Appellants have proposed to pay Rs. 18,50,00,000/- in six equal half yearly instalments wherein the first instalment shall be paid after a period of six months from the implementation date. Clause 8.9 of Chapter VIII of the resolution plan is regarding the payments to the financial creditors and operational creditors, have been duly approved by the CoC in exercise of its commercial wisdom by a majority of 87.57%. It is also the case of the Appellant that it had already included CIRP costs as ratified by the CoC which is to be paid in priority to the tune of Rs. 2,20,00,000/- but by virtue of the impugned order, the Respondent NOIDA has claimed amount of Rs. 27,65,02,686/- and GNIDA has claimed Rs. 1,00,95,82,52 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irm to the requirements referred to in sub-section (1), it may, by an order, reject the resolution plan. (3) After the order of approval under sub-section (1), (a) the moratorium order passed by the Adjudicating Authority under section 14 shall cease to have effect; and (b) the resolution professional shall forward all records relating to the conduct of the corporate insolvency resolution process and the resolution plan to the Board to be recorded on its database. (4) The resolution applicant shall, pursuant to the resolution plan approved under sub-section (1), obtain the necessary approval required under any law for the time being in force within a period of one year from the date of approval of the resolution plan by the Adjudicating Authority under sub-section (1) or within such period as provided for in such law, whichever is later; Provided that where the resolution plan contains a provisions for combination, as referred to in section 5 of the Competition Act, 2002 (12 of 2003), the resolution applicant shall obtain the approval of the Competition Commission of India under that Act prior to the approval of such resolution plan by the committee of creditors. 22. On examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lvency provided that there is no default in payment of current dues arising for the use or continuation of the said lease/license etc. Section 5(13)(e), 14(1)(d) and explanation are reproduced as under : - Section 5(13)(e) insolvency resolution process costs means (e) any other costs as may be specified by the Board; Section 14 (1)(d): Subject to provisions of sub-sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall by order declare moratorium for prohibiting all of the following, namely: (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. 1[Explanation.-For the purposes of this sub-section, it is hereby clarified that notwithstanding anything contained in any other law for the time being in force, a license, permit, registration, quota, concession, clearances or a similar grant or right given by the Central Government, State Government, local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, shall not be suspended or terminated on the grounds of insolvency, subject to the condition that there is n ..... 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