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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 ..... (National Company Law Tribunal, Bench No. IV, New Delhi) in C.A No. 485/ND/2019 filed in CP No. IB-1059/ND/2018. 2. In brief, M/s Concord Infrastructure Pvt. Ltd. (Operational Creditor) filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') bearing CP No. IB- 1059/ND/2018 before the Adjudicating Authority against M/s Shubhkamna Buildtech Pvt. Ltd. (Corporate Debtor) which was admitted on 26.11.2018. 3. The resolution plan submitted by the Appellants was approved by the CoC in its 6th meeting held on 09.10.2019 by an affirmative vote share of 87.57 % on 17.10.2019. 4. After approval of the resolution plan by the CoC, the RP filed CA No. 485 of 2019 under Section 30(6) and 31 of the Code read with Regulation 39(4) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (in short 'Regulations') for approval of the resolution plan. 5. During the pendency of the application filed by the RP, New Okhla Industrial Development Authority/Respondent No. 2 (objector no. 3) and Greater Noida Industrial Development Authority/Respondent No. 3 (GNIDA) (objector no. 4) raised the following objections, noticed in the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Debtor to pay for premises and facilities which is being enjoyed by the Corporate Debtor during the CIRP period. Resultantly, the same will be become part of the CIRP Costs which can be recovered when the Resolution Plan is approved. The objector no.3 and objector no.4 are directed to submit the details of the lease rentals and premium accrued and remaining outstanding during the CIRP Period to the Resolution Professional and the Successful Resolution Applicant within a period of 15 days from the pronouncement of this order, failing which the same shall not become the part of the CIRP Cost." 7. The purport of the aforesaid order is that outstanding lease rental and premium due from the date of CIRP commencement that is 26.11.2018 till the approval of the resolution plan i.e. 12.09.2022 has been ordered to be included in the CIRP costs and both the authorities have been directed to submit the details of the lease rentals and premium within a period of 15 days of the impugned order to the RP. 7. Counsel for the Appellant has submitted that the resolution plan approved by the CoC cannot be tinkered with by the AA for the purpose of alteration and modification in the resolution pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wards the future component of Rs. 8,12,05,605/-. 10. It is also argued that by virtue of the impugned order, total aggregate amount of Rs. 128,60,85,222/- is CIRP costs whereas the entire financial projection in the resolution plan submitted by the Appellants is based on the crystallised and duly verified claims of the creditors of the CD by the RP and the information as furnished to the Appellants in the IM would be detrimental to the feasibility and viability of resolution plan. 11. Counsel for the Appellant has also placed reliance on an order passed by this Court in the case of Sunil Kumar Agrawal Vs. New Okhla Industrial Development Authority, CA (AT) (Ins) No. 622 of 2022 where, in similar circumstances, the payment of lease amount, lease rent and premium was declared as not payable. However, it is also submitted that the said order dated 12.01.2023 passed in Sunil Kumar Agrawal (Supra) is under challenged before the Hon'ble Supreme Court in CA No. 901 of 2023 but there is no order of stay. 12. On the other hand, Counsel for Respondent No. 2 and 3 have submitted that a conjoint reading of Section 5(13) of the Code and Regulation 31 of the Regulations makes it clear that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Resolution Process Cost defined in Section 5(13) of the Code and the mere fact that the CIRP has been triggered and moratorium has been imposed does not absolve the Corporate Debtor from its liability to pay the aforesaid amount. 17. The land of the project Shubhkamna Techhomes, Situated at Plot No. GH-05, Sector 137, Noida, Gautam Budh Nagar, UP was leased to the CD by Noida for a period of 90 years vide lease deed dated 30.07.2010. After the public announcement by the RP on 29.11.2018 by which the RP invited the claims from the creditors, Noida submitted its claim under Form B dated 22.02.2019 of an amount of Rs. 99,32,55,183/- which is inclusive of the future component of Rs. 8,12,05,605/- which was duly admitted by the RP. 18. As far as the project of Shubhkamna City is concerned situated at GH-02, Sector 1, Greator Nodia, it was leased by GNIDA to the CD for a period of 90 years vide lease deed dated 04.04.2011. Pursuant to the public announcement by the RP, no claim was filed by GNIDA with respect to its dues owed by the CD during the CIRP period even though GNIDA had ample opportunity to file its claim. As per the Information Memorandum dated 26.11.2018, published by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olution plan because in that case the plan was modified by observing " if any member of the resolution applicants has entered into or stand as guarantor in the individual capacity, in that event, he shall not be covered with any immunity given under the resolution plan" and in this regard, the following observations have been made by this Court:- "21. So far as appeal filed by M/s Mathuraprasad and others i.e. Company Appeal (AT)(Ins) No.201/2021 is concerned before going into the merit it would be appropriate to reproduce Section 31 of the IBC which is as follows: "31. (1) If the Adjudicating Authority is satisfied that the resolution plan as approved by the committee of creditors under sub-section (4) of section 30 meets the requirements as referred to in sub-section (2) of section 30, it shall by order approve the resolution plan which shall be binding on the corporate debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority to whom a debt in respect of the payment of dues arising under any law for the time being in force, such as authorities to whom statutory dues are owed, guarantors and other stakeholders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on plan or to reject. However, there is no provision for making alteration or modification in the resolution plan. In view of the statutory provisions as contained in Section 31 of the IBC we are satisfied the learned Adjudicating Authority to some extent exceeded its jurisdiction in modifying/altering the conditions in the resolution plan which has been done in para 15 of the impugned order which we have already quoted hereinabove. In such view of the matter the appeal i.e. Company Appeal (AT)(Ins) No.201/2021 can be allowed and it is held that the condition in para 15 of the impugned order shall not be looked into or may not be taken note of. 23. Accordingly the Company Appeal (AT) (Ins) No.201/2021 is allowed and Company Appeal (AT)(Ins) No. 266/2021 is dismissed with no cost." 20. The argument of the Respondent is that Section 5(13) of the Code and Regulation 31 of the Regulations empowers the Tribunal to provide for payments of lease rentals and lease premium due during the CIRP period and the same would be a part of the CIRP costs. The Appellant has pressed Section 5(13) (e) of the Code to argue that it means any costs as may be specified by the Board and Regulation 31(b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (Supra) 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. 22. In such circumstances, we cannot but have to maintain the same order that has been passed in the case of Sunil Kumar Agrawal (Supra) till a decision about its correctness is taken by the Hon'ble Supreme Court in Civil Appeal No. 901 of 2023. 23. In view of the aforesaid observations, the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X
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