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TMI Blog2024 (10) TMI 1551X X X X Extracts X X X X X X X X Extracts X X X X ..... The Development Agreement as amended contemplated in the group housing project 50% shares to the owners and 50% shares to the developer. 50% shares which came to the developer share was 10.81 acres on which project Canary Greens was constructed by the corporate debtor which project was taken possession after initiation of the CIRP by the IRP and thereafter by the Resolution Professional. The Sole Arbitrator in its proceedings dated 12.10.2010 has already noted that the possession has been given to the developer of the said land. Corporate Debtor having commenced the project Canary Greens on the subject land, the possession of the corporate debtor of the project could not have been doubted. The definition under Section 3(27) of the Property is an inclusive definition which obviously includes the Development Rights which was obtained by the Developers from the Owners by Development Agreement dated 03.03.2007 were subsequently assigned to the Corporate Debtor by an Agreement dated 30.07.2010. The Hon ble Supreme Court has clearly laid down in the case of Victory Iron Works Ltd. Vs. Jitendra Lohia Anr. [ 2023 (3) TMI 699 - SUPREME COURT ] that Development Rights are Rights which can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Process (CIRP) of the Corporate Debtor- M/s. Today Homes and Infrastructure Pvt. Ltd. . Company Appeal (AT) (Insolvency) No. 1691 of 2023 and Company Appeal (AT) (Insolvency) No.331 of 2024 have been filed against the common order dated 05.12.2023 passed in IA No.3356 of 2020 and IA No.5001 of 2021. Company Appeal (AT) (Insolvency) No.336 of 2024 and Company Appeal (AT) (Insolvency) No. 337 of 2024 have been filed against the order dated 22.12.2023 passed in IA No. 4876 of 2020 and IA No.987/2021. 2. Company Appeal (AT) (Insolvency) No. 1691 of 2023 and Company Appeal (AT) (Insolvency) No.331 of 2024 arise out of the same facts and events which need to be noted separately whereas facts giving rise to Company Appeal (AT) (Insolvency) No.336 of 2024 and Company Appeal (AT) (Insolvency) No. 337 of 2024 are common and shall be noted separately. Company Appeal (AT) (Insolvency) No. 1691 of 2023 and Company Appeal (AT) (Insolvency) No. 331 of 2024 3. It shall be sufficient to refer facts and pleadings in Company Appeal (AT) (Insolvency) No. 1691 of 2023 for deciding both the Company Appeal (AT) (Insolvency) No. 1691 of 2023 and Company Appeal (AT) (Insolvency) No.331 of 2024. The Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debtor whereby for consideration of Rs.40,00,00,000/-, developer assigned all the rights, obligations, responsibilities and interest in the entire Floor Space Index (FSI) totalling to 8,00,000 sq. ft. to the Corporate Debtor. The rights and obligations in favour of the developer was transferred to the Corporate Debtor as per Development Agreement dated 03.03.2007. The DTCP issued a License No.77 of 2010 to the owners with New India as collaborator for development of the IT Park on area admeasuring 12.55 acres. The Sole Arbitrator as per Consent Award dated 05.09.2009 after obtaining the license on 11.10.2010 by order dated 12.10.2010 directed the joint receivers to handover the possession of the said land to the developer. The Sole Arbitrator- Ms. Usha Mehra recused herself on 08.09.2014 and thereafter under the order of the High Court, Justice R.M. Lodha was appointed as Arbitrator vide order dated 27.11.2015. Further dispute between the developer and owners arose. Sole Arbitrator Justice R.M. Lodha held his first sitting on 11.01.2016. Supplementary statement of claims and claims by the owners were filed before the Arbitrator. Sole Arbitrator heard the parties. An award was deliv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of 2021 by which application owners sought a direction to the Resolution Professional to exclude the project land ad-measuring 10.81 acres situated in Village Behrampur from the proposed Resolution Plan. 3.2. All the aforesaid three IAs were heard by the Adjudicating Authority and by order dated 05.12.2023, Adjudicating Authority disposed all the three applications. The Adjudicating Authority in the impugned order after noticing three applications framed five issues. The first issue framed was who has the actual physical possession of the land in dispute as on date and from which date, supporting documents in this regard shall be filed . The Adjudicating Authority held that the Resolution Professional could not place on record any evidence to show that the physical possession of the land in question was handed over to him and the Resolution Professional is in possession of the land. It was further observed that the issue of possession has to be decided by a Civil Court having jurisdiction on the basis of oral and documentary evidence and the Adjudicating Authority is not competent to decide the same. The Adjudicating Authority held that it cannot grant any relief as prayed for by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011, the Directorate of Town and Country Planning Department, Haryana issued a License dated 06.01.2011 in favour of the Respondent Nos.1 to 4 for setting up of a group housing colony. A supplementary Joint Collaboration Agreement dated 06.11.2015 was entered between the parties where parties entered into certain agreements. IA No.4876 of 2020 was filed by the Resolution Professional seeking direction against Respondent Nos.1 to 3 to handover the peaceful, vacant and peaceful physical possession area admeasuring 2.14 acres. It is also relevant to notice that in the CIRP of the Corporate Debtor, a Resolution Plan was submitted by the SRA- Consortium of Canary Greens Buyers Welfare Association, Callidora Flat Owners Welfare Association and Royal Elegancia Apartment Buyers Association which was approved by the CoC in its 12th meeting dated 16.08.2021 with 96.93% voting share and the application IA No.4876 of 2020 was filed by the Resolution Professional for approval of the plan is pending before the Adjudicating Authority. The Adjudicating Authority relying on its order dated 05.12.2023 passed in IA No.3356 of 2020, IA No.3629 of 2020 and IA No.5001 of 2021 took the view that the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btained license from Directorate of Town and Country Planning, Haryana for the development of Residential as well as IT Park Land, in developer shares area of 10.81 acres, the developer has assigned its rights and obligations under the Development Agreement to the Corporate Debtor for consideration. The owners have also executed a Power of Attorney in favour of the corporate debtor and the corporate debtor on the land which is in the developer shares has already constructed the project namely- Canary Greens where several towers have already been constructed and allotments have been made to the homebuyers. It is submitted that the development rights which were given to the developers and assigned to the corporate debtor are right to property and the Resolution Professional was clearly entitled to take possession of the land on which development rights were granted. The Adjudicating Authority committed error in returning a finding that no document could be filed by the Resolution Professional to prove that the Resolution Professional is in possession of the area. It is submitted that there are sufficient documents on record to prove that it was Resolution Professional who was in poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open for the land owners who have given development rights over the entire land to claim that area 10.81 acres be excluded. It is submitted that the owners are in possession of their share of 10.81 acres. Arbitration award obtained by the owners on 09.12.2007 has already been put into execution by the owners which they are free to prosecute. 7. Adjudicating Authority committed error in observing that it had no jurisdiction to decide the possession. It is submitted that there being development rights in favour of the developer which has assigned to corporate debtor, it is the corporate debtor who has rights and obligations in the subject land which requires determination by the Adjudicating Authority and issue of development rights in the land cannot be decided dehorse the IBC proceedings and the Adjudicating Authority committed error in holding that it has no jurisdiction. 8. Shri Rajesh Kumar Gautam, Learned Counsel appearing for the owners in Company Appeal (AT) (Insolvency) No.331 of 2024 submits that the land is owned by the Appellant and is in their possession. The Corporate Debtor has failed to prove that it was in possession on the day of commencement of Moratorium i.e. on 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate debtor is Rs.60 Cr. and paid up capital is Rs.56.29 Cr., hence, how the corporate debtor can agree to issue equity shares of Rs.120 Cr. to developer in consideration of the developer selling the entire FSI of 8,00,000 sq. ft. of Group Housing Project to the Corporate Debtor. 9. Counsel for the Appellant in Company Appeal (AT) (Insolvency) No.336 of 2024 and Company Appeal (AT) (Insolvency) No. 337 of 2024 submits that the orders impugned in these two appeals are based on the order dated 05.12.2023 passed by the Adjudicating Authority in IA No.1691 of 2023 and IA No.331 of 2024. It is submitted that the order dated 05.12.2023 being not sustainable the orders which are subject matter challenge in this Appeal also deserves to be set aside. It is submitted that the land which is subject matter of these two Appeals being Company Appeal (AT) (Insolvency) No.336 of 2024 and Company Appeal (AT) (Insolvency) No. 337 of 2024 was also subject to Joint Collaboration Agreement dated 06.08.2010 between Respondent No.1 to Respondent No.3, Realtech Realtors Pvt. Ltd. and Jai Mata Realtors Pvt. Ltd. On 06.08.2010, an agreement was entered between Jai Mata Realtors Pvt. Ltd. and the Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cres i.e. land in question? (iii) Whether Adjudicating Authority was not competent to decide the question of possession of subject land in which development rights was claimed by the corporate debtor and the question was required to be adjudicated only by a Civil Court? (iv) Whether subject land i.e. 10.81 acres was required to be excluded from the CIRP of the Corporate Debtor as prayed by owners in their IA No.5001 of 2021? (v) Reliefs, if any, to which the Appellants are entitled in these Appeals? 13. Before we enter into submissions of the Appellants and the issues as noted above, we need to notice the relevant Development Agreement, Special Power of Attorney, Consent Arbitration Award and other relevant materials which falls for consideration in the present Appeals. The first document which need to be noticed is the Development Agreement dated 03.03.2007 which was entered between the owners and M/s. New India City Developers Pvt. Ltd. (hereinafter referred to as Developer). M/s. New India City Developers Pvt. Ltd. has been referred to in the Agreement in following:- M/S New India City Developers Pvt. Ltd. a Company registered under the Companies Act having its registered office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oper the absolute right to develop the said property the Developer agrees to pay to the Owners @ Rs. 10,00,000/-(Rupees Ten Lacs only) per acre total amounting to Rs. 3,52,05,000/- (Rupees Three Crore Fifty Two Lacs Five Thousand Only). payable to the respective constituent Owners as non-refundable amount and out of the said amount a sum of Rs. 1,97,40,000/- (Rupees One Crore Ninety Seven Lacs Forty Thousand Only) has already been received by the Owners from Jaimata Realtors Pvt. Ltd. at the time of signing of the erstwhile Development Agreement with M/s. Jaimata Realtors Pvt. Ltd., which the Developer herein has taken over the responsibility to refund to the said M/s Jaimata Realtors Pvt. Ltd. and a sum of Rs. 1,54,65,000/- (Rupees One Crore Fifty Four Lacs Sixty Five Thousand Only) is being paid at the time of execution of this agreement, and as fully described in annexure-D'annexed hereto the receipt whereof the constituent Owners and each of them do hereby admit and acknowledge Alongwith the above said non-refundable amount, the developer also agrees to pay the Owners @Rs.15,00,000/- (Rupees Fifteen Lacs only) per acre total amounting to Rs.5,28,09,000/-(Rupees Five Crores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly be entitled to sub- contract, development / construction in favour of contractors/sub-contractors as it deems fit with regard to the Owner's allocation. However any dispute or liability arising out of or in connection with the said development of the owner's allocation, the owner shall be exclusively liable for the same and shall indemnify and keep harmless the developer. The developer shall be bound to promote and develop the project as a Today Group Project. 20. Clause 9.3 deals with possession of scheduled land . Clause 9.3 is as follows:- 9.3 Possession of Scheduled Land: That upon execution of this agreement, the Owner has handed over possession of the scheduled property to the Developer to enable the Developer to do various acts as may be required from time to time for commencing, development, marketing and completing the project and also to set up the site office. 21. The license being License No. 3 of 2009 was obtained by Town and Country Planning Department, Haryana Government for group housing whih reads as follows:- FORM LC-V (See Rule-12) Haryana Government Town and Country Planning Department Licence No. 3 of 2009 1. This licence has been granted under The H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with a copy to the Director, with in two month period from the date of grant of licence to enable provision of site in your land for Transformers/Switching Station/ Electric Sub-Stations as per the norms prescribed by the power utility in the zoning plan of the project. 11. The licence is valid upto 11-2-2011. Dated Chandigarh 22. In the present Appeals, we are only concern with the area which is meant for group housing project of 10.81 acres which fell in the developer s portion. Application was filed by the Resolution Professional with regard to the said area and application filed by the owners being IA No.5001 of 2021 was for excluding the area 10.81 acres from the CIRP of the corporate debtor. We have noticed above that due to certain disputes between the developer and the owners, arbitration proceedings took place between the parties. Sole Arbitrator was appointed by the order of the High Court of Punjab Haryana dated 29.05.2008. Arbitral Award with consent of the parties was passed on 05.09.2009 by Ms. Usha Mehra (Retd. Judge of the Delhi High Court). 23 . Consent Award between the parties provided that the physical possession of the entire land was to be handed over by the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) To sell, transfer market, lease, license, construct, mortgage, dispose off, get delicensed, surrender or make any other arrangement with any third party/ies like Joint Venture in respect to the Developers allocation with respect to the share in the land/developed land/constructed areas thereupon with all facilities and amenities as is available thereto and as fully demarcated in colour Green (50% FSI) in the plan annexed hereto for the Group Housing Project and as fully demarcated in colour Blue (50% FSI) in the plan annexed hereto for the Cyber Park project and further empowered to deal with as above, 100% of the site falling under public area (community sites) like School, Hospital, Clubs, Facilities, entire commercial areas falling in Group Housing Scheme etc. proposed to be developed on the said land. All obligations with respect to providing units for EWS, shall be discharged by the Developer and is accordingly empowered to deal with. 7(c) To sign and execute agreement for sale, Allotment letter, possession letter, sale deed/conveyance deed, rectification deed, security document or any other instrument as may be permissible under law, in respect of developers allocation as e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ens admeasuring 10.81 acres was noted and Adjudicating Authority has observed that the Resolution Professional could not place on record any evidence to show that the physical possession of the land in question was handed over to him. Adjudicating Authority further observed that the issue of possession has to be decided by a Civil Court having jurisdiction on the basis of oral and documentary evidence and the Adjudicating Authority is not competent to decide the same. Paragraph 28 of the judgment of the Adjudicating Authority reads as follows:- 28. Be that as it may, the Resolution Applicant/Applicant, in this application has prayed for directing the Respondent No. 1 to 4 (land owners) to restore the peaceful vacant and physical possession of Canary Greens admeasuring 10.81 acres that is the land in question. The Resolution Professional has also prayed for directing the Respondent No. 5 and 6 to assist the Applicant in restoring the peaceful vacant and physical possession of the land in question. We are therefore, required to examine as to whether the Resolution Professional has the possession of the land in question. The Resolution Professional in the present application as well a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solution Professional is in possession or actual possession of the land could have been incidence to decide the main question. We have noticed the Terms and Conditions of the Development Agreement dated 03.03.2007 where development rights were granted to the developer. We have also noted one of the terms of the Development Agreement i.e. Clause 7 where developer was bound to promote and develop the project as a Today Group Project and Clause 7 specifically empowers the developer to develop the project either independently or by appointing partners contractors, sub- contractors or other agencies. After the Consent Terms were noticed by Sole Arbitrator, by Agreement dated 30.07.2010, the developer has transferred all its rights and obligations to the corporate debtor on consideration of Rs.40,00,00,000/- which was subsequently increased to Rs.120,00,00,000/-. The Development Agreement as amended contemplated in the group housing project 50% shares to the owners and 50% shares to the developer. 50% shares which came to the developer share was 10.81 acres on which project Canary Greens was constructed by the corporate debtor which project was taken possession after initiation of the CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor. Reference of irrevocable Power of Attorney dated 19.01.2010 executed by Owners in favour of Corporate Debtor was also made. After the appointment RP took steps for taking custody and control of the all assets including the land measuring 10.81 acres. On 11.08.2020, Owner dispossessed Applicant from the land, hence the Application was filed. In the Application, details, facts and events have been pleaded. It was pleaded that as per the Consent Award dated 05.09.2009, possession was handed over to the Developer. Reference of revocation of Power of Attorney on 30.08.2019 was also pleaded. In Para 21 of the Application, RP pleaded that Corporate Debtor is engaged in the business of construction and erecting of housing and building Project, namely Canary Greens, over 10.81 acres. Paragraphs 21 to 25 of the Application are as follows: 21. That the Corporate Debtor, which is engaged in the business of construction and erection of houses and building, was developing a Housing Project in the name and style of Canary Greens ( said Project ), spread over 10.81 acres (8,00,000 sq. ft. FSI), situated at Sector-73, Sohna Road, Gurugram ( project site ). The said Project was being developed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obtaining the requisite approval/clearance. Copy of Letter of Intent dated 09.07.2020 alongwith work orders dated 05.08.2020 are annexed herewith and marked as ANNEXURE A-14 (COLLY). 24. That as the construction work of the Housing Project was pending for a considerable period, the area surrounding the Housing Project required cleanliness, upkeep and regular maintenance. Being so, certain cleaning/maintenance staff was engaged to carry out the said task. 25. That while the Applicant was all set to re- start the construction/ development work and had finalized the terms with: the concerned contractor, to the utter shock and distress of the Applicant it was learnt in the morning of 11.08.2020, from the officers of the Corporate Debtor deployed at the said project site/ and security personnel deployed on the said project site that 4 unknown miscreants, sent by the Owners/ Respondent Nos. 1 to 4 herein, barged into the Project site and dispossessed the representatives of the Applicant from the project site. They threatened the security guards and cleaning staff with dire consequences, if the said project site was not vacated. The security guards were forcefully removed from the projec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 4 in favour of the Corporate Debtor. He further submitted that Respondent No. 1 to 4 have entered into the project site without any right and have interfered with peaceful possession and construction of the Corporate Debtor which is in violation of the provisions of IBC particularly Section 14, as the Corporate Debtor has been undergoing CIR process since 31.10.2019. In the circumstances, Respondent No. 5 6 are directed to ensure that the Respondents 1 to 4 do not interfere in the peaceful possession of the RP on the land in question i.e., Canary Greens situated at Sector 73, Sohna Road, Gurugram. The Respondents No. 5 6 are directed to provide due protection and assistance to the Resolution Professional namely, Mr. Nilesh Sharma. List this matter on the 28th August, 2020. 34 . RP s case further is that in pursuance of the Order dated 24.08.2020 was handed over the possession of Canary Green site on 02.09.2020 with assistance of Police Station, Badshahpur, Gurgaon. 35 . I.A. No. 5001/2021 was filed by the Owners dated 20.10.2021, where it was specifically pleaded that Application of the Land Owners are only concern with the Project titled as Canary Green. In Para 9 of the Applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the parties. 37. In the Application I.A. 5001/2021, Applicant prayed for following relief: 17 . In view of the facts and submissions mentioned/made herein above, the Applicant prays for the following reliefs: a. The Resolution Professional be directed to exclude the Project Land admeasuring 10.81 acre situated in estate of Village Behrampur, Tehsil District Gurugram in the State of Haryana from the Proposed Resolution Plan. b. Pass such other and further order (s) as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case. Interim Relief a. Direct the Resolution Professional to provide complete copy of the Proposed Resolution Plan of Canary Greens Project to the Applicants; and/or b. Pass ad interim orders in terms of above prayers; c. Pass such other and further order (s) as this Hon ble Tribunal may deem fit and proper in the facts and circumstances of the case. 38. Thus, the above pleadings of the Owners themselves in I.A. 5001/2021 indicates that the Application filed by them concern only to Project land where Project Canary Greens was constructed. It was also admitted that Corporate Debtor has Development Right on the said land, which, ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the said directions, the possession of the project land was handed back to the undersigned with the assistance of SHO, Badshahpur Police Station on 02.09.2020. In this regard, a letter dated 02.09.2020 was written by the RP to the local district administration/concerned Police Station, intimating them about taking the possession of the said project land on 02.09.2020 and extending his appreciation on the quick action taken by the said authorities. The copy of the letter dated 02.09.2020 is attached as Annexure A-2 in IA No 347/2020. Since then the possession of the Canary Green project land is in the possession of the undersigned. However, the land owners of the said land are not allowing anybody other than the RP team, including the contractors engaged by the undersigned or any homebuyer to enter the project site. The undersigned therefore filed IA 347/2020 for initiating contempt proceeding against the land owners for violating the directions of this Hon ble Tribunal as issued vide order dated 24.08.2020 and causing hinderance in the possession of the project land which is in possession of the RP. The said application is pending adjudication before this Hon'ble Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Right granted to the Corporate Debtor. The Application 3356/2020 in detail traces how the Development Right came to be assigned to the Corporate Debtor. Section 25(2) obliged the RP to take immediate custody and control of all the assets of the Corporate Debtor and business records of the Corporate Debtor. Section 25(1) Section 25(2)(a) is as follows: Section 25: Duties of resolution professional. ( 1) It shall be the duty of the resolution professional to preserve and protect the assets of the corporate debtor, including the continued business operations of the corporate debtor. (2) For the purposes of sub-section (1), the resolution professional shall undertake the following actions, namely: (a) take immediate custody and control of all the assets of the corporate debtor, including the business records of the corporate debtor; 42 . It is no more res integra, that the Development Rights are Rights which can be claimed by a Developer in assets. Development Rights are also fully covered by the definition of Property under Section 3(27) of the IBC. Section 3(27) of the IBC is as follows: 3. In this Code, unless the context otherwise requires, (27) property includes money, goods, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in question would constitute asset within the meaning of Section 18(1)(f) and Section 25(2)(a) IBC. 45. In Paragraph 40, Hon ble Supreme Court in `Victory Iron Works Ltd. (Supra), noted the series of documents which reflected bundle of rights and interest. Para 40 of the Judgment is as follows: 40. 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 24-1-2008; (ii) the shareholders' agreement dated 24-1- 2008; (iii) the flow of the consideration from the corporate debtor to the UCO Bank and to Energy Properties; (iv) the development agreement dated 16-6- 2008; (v) the memorandum recording possession dated 2-3-2010 executed by the original shareholders of Energy Properties; (vi) the memorandum recording possession dated 24-6-2010 executed by Energy Properties in favour of the corporate debtor; and (vii) the leave and licence agreement primarily executed by the corporate debtor in favour of Victory, which was merely confirmed by Energy Properties as a confirming party. Some of these bundle of rights and interests, partake the character and shade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Development Right of Corporate Debtor are to be protected in the proceedings under the IBC. ii. NCLT has jurisdiction to protect the Development Right of the Corporate Debtor. 51 . From the above, it is clear that Corporate Debtor had Development Rights in the asset, area of 10.81 acres of land on which Project Canary Green was constructed by the Corporate Debtor. In the Project, allotments were also made to the 500 Homebuyers. 52. As noted above, Adjudicating Authority in the Impugned Order has observed that RP has failed to produce any material to prove that RP was in possession of the land in question. We have noted above the several materials and pleadings which were brought by the RP on the record to prove its possession which we have noticed above. We have already noticed the pleading in I.A. 5001/2021 filed by the Owners themselves, where it was admitted that the Corporate Debtor has Development Rights, however, the plea taken by the Owners was that Development Rights which were given by Special Power of Attorney dated 19.01.2010 was revoked on 30.08.2019. 53 . As noted above, the Affidavit was filed by RP in response to the query made by Adjudicating Authority on 29.08.2023 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered the submissions of the parties. Two things may be immediately observed. One, as per clause 4.1 of the Development Agreement, the Developer is bound to complete the development of the entire area (including the Owner/Respondent s share) within 24 months from the date of being handed over of the possession of the land. Two, it is not in dispute that pursuant to the consent award, the Claimant was put in actual physical possession of the entire land on 12.10.2010. That the Claimant has not carried out any development work at all on the land falling in the share of the Respondents till date is not in dispute. In terms of the consent award, the timeline fixed under clause 4.1 of the Development Agreement starts from 12.10.2010 being zero date. 56 . The Award given by Arbitrator has not been challenged by the Owners and they are Claiming Right under the Award. Thus, the issue that Developers were put in possession is conclusively established. In the I.A. 6558/2020, which has been filed by the Intervenor (Developer) in Comp. App. (AT) (Ins.) No. 1691/2023, the copy of the Arbitration Order dated 12.10.2010 has also been annexed, which clearly records that receivers have handed ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, we answer Question No. I to IV in following manner: i. The observation of the Adjudicating Authority in Order dated 05.12.2023 that the RP could not place on record the evidence to show that physical possession of land in question was handed over to him is unsustainable. ii. There are sufficient materials on record to come to conclusion that RP/Corporate Debtor is in possession of area admeasuring 10.81 acres, i.e., land in question. iii. Adjudicating Authority was competent to decide the question of possession of subject land in which Development Rights was claimed by the Corporate Debtor and subject question was not required to be relegated to be adjudicated by the Civil Court. iv. The subject land i.e.,10.81 acres was not required to be excluded from the CIRP of the Corporate Debtor as prayed by the Owners in their I.A. No. 5001/2021. Question No. V 61. In view of the reasons and our conclusion as above, we are of the view that I.A. No. 3356/2020 filed by the RP was required to be allowed by the Adjudicating Authority. Adjudicating Authority committed an error in disposing of the Application with the observations as noted above. 62. In result, Comp. App. (AT) (Ins.) No. 1691 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15/1 (0-10), Killa No. 17/3 (1-16), Killa No. 3 (8-0), Killa No. 4/1 (5-8), Killa No. 7 (8-0), Killa No. 12 (4-5), Killa No. 13/2 (2-9), Killa No. 14/1 (6-17), Killa No. 18/1 (7-19), Killa No. 20/1/1 (5-7) and Rect No. 9 Killa No. 26 (0-12), Village Behrampur, District Gurugram as an asset of the Corporate Debtor and to exclude the said land admeasuring 9.675 acres from the assets of the Corporate Debtor. d) Pass any order or orders, direction or directions, relief or reliefs which this Hon'ble Bench deems fit and proper in view of facts and circumstances mentioned hereinabove, in favour of the Applicants, in the interest of Justice. 65 . The Adjudicating Authority after noticing the brief facts has relied on its earlier Order dated 05.12.2023, and relying on the said Order held that Adjudicating Authority has no jurisdiction to decide the issue and question of possession in the present case need to be decided by the Civil Court. Para 7 8 of the Judgment is as follows: 7. In an identical situation in IA-3356/2020, IA- 3629/2020 IA-5001/2021 in IB-2130(ND)/2019 vide order dated 05.12.2023, this Adjudicating Authority has taken a view with the disputed questions with regard to po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and part of Killa No. 20(2-0) totaling to 17 Kanal and 3 Marla situated at Sector-73, Sohna Road, Gurugram to the Applicant immediately: c) Pass an order directing Respondent No. S and 6 to assist the Applicant in restoring the peaceful, vacant and peaceful physical possession of 2.14 Acres (approx.) of Killa No. 18(7-3), 19(8-0) and part of Killa No, 20(2-0) totaling to 17 Kanal and 3 Marla situated at Sector-73, Sohna Road, Gurugram to the Applicant immediately: d) Take appropriate action against the Respondent Nos. 1 to 3 in terms of Section 74 of IBC for violation of Section 14 of Insolvency and Bankruptcy Code, 2016; e) Pass ad-interim ex-parte order in terms of prayer (c) hereinabove; f) Pass such other or further orders and other relief(s) as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case. 68 . When we come to the Application filed by Owners being I.A.987/2021, prayers in the Application have been noted in the Impugned Order dated 22.12.2023 passed in I.A. 987/2021. The prayers in the Application filed by the Owners sought direction to handover the peaceful vacant possession, a portion of land to the Owners with immediate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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