Soumitra Lahiri, Liquidator of SKP Steel Industries Pvt. Ltd. - In our opinion, the sale of the Corporate Debtor as a going concern is akin to a de-facto CIRP, and therefore the judgments are applicable in the present case of a going concern sale too, shall therefore be applicable in the present case as well.

 NCLT Kolkata (25.07.2023) In Soumitra Lahiri, Liquidator of SKP Steel Industries Pvt. Ltd. [I.A.(I.B.)No. 1096/KB/2022 In C.P.(I.B.) No. 2171/KB/2019, (2023) ibclaw.in 398 NCLT] held that;

• In our opinion, the sale of the Corporate Debtor as a going concern is akin to a de-facto CIRP, and therefore the judgments are applicable in the present case of a going concern sale too, shall therefore be applicable in the present case as well. 

Excerpts of the Order;  

# 1. This IA has been filed by Liquidator seeking approval of this Adjudicating Authority, for sale of Liquidation Estate, applicant has stated that he has managed to have successful e-auction pertaining to selling of liquidation estate of the Corporate Debtor as a going concern as defined under clause (e) of Regulation 32of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016. 

# 2. The primary relief sought by the Applicant is to “(a)Pass an order approving sale of the Liquidation estate of SKP Steel Industries Private Limited ‘in Liquidation’ on “AS IS, WHERE IS, WHATEVER THERE IS AND WITHOUT RECOURSE BASIS” as a Going concern as defined in sub regulation (e) of regulation 32 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016;” which cannot be granted. 

# 3. Further, the applicant has sought reliefs, to grant certain waivers and concessions as a consequence of sale of Corporate Debtor in liquidation. The reliefs are as follows: 

• “(b) Pass an order permitting the successful Purchaser, Balmukund Cement & Roofings Private Limited, to take over the Liquidation estate of the Corporate Debtor with a clean state without burdened with any pre-liquidation liabilities of the Corporate Debtor; 

• (c) Pass an order that the Successful Purchaser has assumed that upon approval of this sale as a Going Concern by the Hon’ble Adjudicating Authority all subsisting consents, licenses, approval, rights, entitlements, benefits and privileges whether under law, contract, lease or license, granted in favour of the Corporate Debtor or to which the Corporate Debtor is entitled accustomed to shall, notwithstanding any provision to the contrary in their terms, be deemed to continue without disruption for the benefit of the Corporate Debtor.

• (d) Pass an order that the successful purchaser shall stand discharged from pre-liquidation claims and on and from the approval of the sale as Going Concern by the Hon'ble Adjudicating Authority all such claims which are not a part of E-Auction Process memorandum shall stand extinguished and no person will be entitled to initiate or continue any proceeding in respect to a claim which is not part of the E Auction Process Memorandum. 

• (e) Pass an order that upon approval of this Going Concern sale by Hon'ble Adjudicating Authority, all inquiries, investigations and proceedings, whether civil or criminal, notices, causes of action, suits, claims, disputes, litigation, arbitration or other judicial, regulatory or administrative proceedings against, or in relation to, or in connection with the Corporate Debtor or the affairs of the Corporate Debtor, pending or threatened, present or future, (including without limitation, any investigation, action, proceeding, prosecution, whether civil or criminal, by the Central Bureau of Investigation, the Enforcement Directorate or any other regulatory or enforcement agency), in relation to any period prior to the Completion Date or arising on account of the acquisition of control by the Resolution Applicant over the Corporate Debtor pursuant to this Resolution Plan shall stand withdrawn or dismissed and all liabilities or obligations in relation thereto, whether or not set out in the balance sheets of the Corporate Debtor or the profit and loss account statements of the Corporate Debtor, will be deemed to have been written off in full and permanently extinguished and the Corporate Debtor or the Successful Bidder shall at no point of time be, directly or indirectly, held responsible or liable in relation thereto notwithstanding any adverse order that may be passed in respect of the same by any authority. 

• (f) Pass an order that upon approval of this Going Concern sale by the Hon'ble Adjudicating Authority all new inquiries, investigations, whether civil or criminal, notices, suits, claims, disputes, litigation, arbitration or other judicial. regulatory or administrative proceedings will be deemed to be barred and will not be initiated or admitted against the Corporate Debtor in relation to any period prior to the acquisition of control by the Resolution Applicant over the Corporate Debtor or on account of the acquisition of control by the Successful Bidder over the Corporate Debtor pursuant to this Going Concern sale.\ 

• (g) Pass an order that all contracts between the Corporate Debtor and related parties (as defined in Section 5(24) of the Code shall stand terminated with effect from the Completion Date unless otherwise notified by the Successful Bidder by the Completion Date, and the Corporate Debtor shall not be liable towards any claims with respect to termination of such contracts, including but not limited to, any claims, penalty, damages (liquidated or otherwise), arbitration claims, claims for specific performance or claims for interim relief 

• (h) Pass an order that all financial obligations under any contract to which the Corporate Debtor is a party, relatable to a period prior to the Liquidation commencement date, if not provided for under this e- auction Process Memorandum, shall stand extinguished. 

• (i) Pass an order that all matters requiring any shareholder approval or approval of the Board for implementation of the Going Concern Sale shall be deemed to be granted. However, all filing- related compliances shall be completed and no waiver can be granted in this regard. 

• (j) Pass such further and other orders and directions as the nature and circumstances of the case may require and as this Hon'ble Tribunal may deem fit and proper. 

# 4. The reliefs as asked for which are mentioned above, are in a very generalized manner. Such carte blanche cannot be granted. This Adjudicating Authority has power to grant reliefs, waivers and concessions only with respect to the reliefs, waivers and concessions that are directly in relation to the Code and the Companies Act, 2013 (within the powers of the NCLT). The reliefs, waivers and concessions that pertain to other governmental authorities/departments shall be dealt with the respective competent authorities/forums/offices, Government or Semi Government of the State or Central Government with regard to the respective reliefs, waivers and concession. The competent authorities including the Appellate authorities may consider grant such reliefs, waivers and concessions keeping in view the spirit of the code (IBC 2016). 

# 5. The reliefs, waivers and concessions shall be consistent with extant law. Further since this is a ‘Going concern sale’ , the Successful Bidder shall make necessary applications to the concerned regulatory or statutory authorities for renewal of business permits and supply of essential services, if required, and all necessary forms along with filing fees etc. and such authority shall also consider granting the same keeping in mind the objectives of the Code which is concerned with resolving of the insolvency of the Corporate Debtor. 

# 6. With respect to the waivers with regard to extinguishment of claims which arose Pre CIRP and which have not been claimed are granted in terms of Ghanashyam Mishra and Sons Pvt Ltd v Edelweiss Asset Reconstruction Company Ltd  wherein the Hon'ble Supreme Court has held that once a resolution plan is duly approved by the Adjudicating Authority under sub-section (1) of section 31, the claims as provided in . the resolution plan shall stand frozen and will be binding on the Corporate Debtor and its employees, members, creditors, including the Central Govt, any State Govt or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan. The Hon’ble Supreme Court also held that all the dues including the statutory dues owed to the Central Govt, any State Govt or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period prior to the date on which the Adjudicating Authority grants its approval under section 31 could be continued. 

# 7. With respect to the waivers sought in relation to guarantors, the judgment of Lalit Kumar Jain v Union of India & ors, wherein the Hon’ble Supreme Court held in para 133 that sanction of a resolution plan and finality imparted to it by section 31 does not per se operate as a discharge of the guarantor's liability shall apply. 

# 8. Now, the only question that craves answer is the applicability of the ratio of above two judgements to the present question where the Corporate Debtor has been sold as a going concern. In our opinion, the sale of the Corporate Debtor as a going concern is akin to a de-facto CIRP, and therefore the judgments are applicable in the present case of a going concern sale too, shall therefore be applicable in the present case as well. 

# 9. In view of the position brought out in para 4 above, this IA being I.A.(I.B.) No. 1096/KB/2022 is allowed to the extent hereinabove and is accordingly disposed of. 

# 10. A certified copy of this order may be issued, if applied for, upon compliance with all requisites.

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Simbhaoli Sugars Ltd. Vs. Pramod Kumar Sharma RP of Uniworld Sugars Pvt. Ltd. & Ors. - It is now well settled that distribution to the creditors in accordance with provisions of Section 30(2) is in the discretion of the Committee of Creditors and with regard to distribution the scope of judicial review by the Adjudicating Authority and this Tribunal is very little.

NCLAT (28.07.2023) In Simbhaoli Sugars Ltd. Vs. Pramod Kumar Sharma RP of Uniworld Sugars Pvt. Ltd. & Ors.  [Company Appeal (AT) (Insolvency) No.776 of 2023, (2023) ibclaw.in 479 NCLAT] held that;

• It is now well settled that distribution to the creditors in accordance with provisions of Section 30(2) is in the discretion of the Committee of Creditors and with regard to distribution the scope of judicial review by the Adjudicating Authority and this Tribunal is very little.

Excerpts of the Order;  

28.07.2023: Heard learned counsel for the Appellant as well as learned counsel appearing for the Resolution Professional and Successful Resolution Applicant. This Appeal has been filed against order dated 20.03.2023 passed by the Adjudicating Authority approving Resolution Plan at second round. Appellant before us is the Promoter and Shareholder of the Corporate Debtor. In the earlier round of the CIRP, the plan was approved by the Adjudicating Authority vide its order dated 17.03.2021. Challenging the said order the present Appellant as well as one Operational Creditor have filed Appeals in this Tribunal being Company Appeal (AT) (Ins.) No. 741 of 2021 and 422 of 2021. Both the Appeals were heard and decided by this Tribunal and by its judgment and order dated 12.04.2022 this Tribunal took the view that third valuation report which was obtained was uncalled for and the liquidation value of the Corporate Debtor ought to have been taken on the average of two valuation report which were earlier obtained. This Tribunal disposed of the Appeals and in Para 44, 45, 46 and 47 following was held:

• “44. After careful consideration of the rival submissions of the parties and the record and as per detailed discussion and analysis, we are of the view that the third valuation report of fair and liquidation should be discarded as it is not in accordance with the stipulated provision and procedure in the CIRP Regulations, and moreover the wide variance of the liquidation value of the third valuation report from the first two valuation reports also necessitates discarding of the third valuation report. Therefore, the average liquidation value of first two valuations viz. Rs. 123.66 crores should be the liquidation value on which various payments in the resolution plan should be based upon.

• 45. It is noted that the successful resolution plan was approved by the Adjudicating Authority on 17.3.2021 and it is now more than a year since the SRA has stepped in the shoes of the corporate debtor and has taken up implementation of the resolution plan. Hence it would serve the interests of the creditors and stakeholders in a fair and just manner if the SRA revises the payments to be given to stakeholders and creditors resolution plan in the light of the liquidation value of Rs. 123.66 crores and puts it up to the CoC for consideration and necessary approvals.

• 46. We, therefore, set aside the impugned order and the resolution plan only to the extent it relates to allocation of payments to the stakeholders and creditors and direct that the revision of payments and subsequent approval of the revised resolution plan should be completed within a period of two months from the date of this judgment.

• 47. We may also add that the pending applications, namely CA Nos. 235/2018, 236/2018 and 237/2018 and any other application which pertains to recovery of amounts and which could not be properly considered and adjudicated upon, should also be disposed of, preferably in the next two months, and any monies accrued in the kitty of the corporate debtor should be taken as adding to the liquidation value of the corporate debtor and to be utilized for payments to the creditors and stakeholders.”

# 2. Subsequent to the order of this Tribunal, the Resolution Applicant revised the payments to the different stakeholders and same was placed before the Committee of Creditors. The Committee of Creditors approved the revised payments in its meeting dated 11.05.2022. The revised payments were approved by the Committee of Creditor with 100% vote share. The Resolution Professional filed an application for approval of the plan before the Adjudicating Authority, on which application the order impugned dated 20.03.2023 has been passed by the Adjudicating Authority approving the Resolution Plan.

# 3. Learned counsel for the Appellant challenging the order dated 20.03.2023 submits that the approval of the Resolution Plan is not in accordance with law. He submits that the payments to the Operational Creditors have decreased in the revised payments proposal. He further submits that Regulation 29 of the Insolvency and Bankruptcy Board of India. (Liquidation Process) Regulations, 2016 has not been followed. He submits that the object of the I&B Code is maximisation and when the average liquidation value to be taken was Rs.123.66 Crores, the increase of only Rs.3 Crores in the plan value cannot be said to be in accordance with law and cannot be said to be in line of the order passed by this Appellate Tribunal.

# 4. Learned counsel for the Resolution Professional refuting the submissions of learned counsel for the Appellant contends that the only limited scope which was left by the order dated 12.04.2022 was redistribution of the payments by taking liquidation value of Rs.123.66 Crores and following the said liquidation value, the plan value which was earlier Rs.53 Crores was enhanced to Rs.56 Crores. He further submits that the Rs.56 Crores was the payment which was envisaged under the plan whereas the total fund which is required to put by Successful Resolution Applicant runs to Rs.173 Crores. It is submitted that the Operational Creditor – ED&F Man, who has objected, has recorded his no objection, which is captured in Para 14 of the impugned order. It is submitted that the fact that the Operational Creditors amount pay-out has been little less is inconsequential since the liquidation value of the Operational Creditor is nil and the amount of Rs.1.57 Crores which is proposed to be paid is by the Successful Resolution Applicant, although the liquidation value is nil. It is submitted that the Appellant who is a Shareholder and Promoter has been creating obstructions in successful resolution of insolvency of the Corporate Debtor. There are not merits in the Appeal and it deserves to be dismissed.

# 5. Learned counsel for the Successful Resolution Applicant has adopted the arguments advanced by learned counsel for the Resolution Professional.

# 6. We have considered the submissions of learned counsel for the parties and perused the record.

# 7. The direction of this Tribunal dated 12.04.2022, as extracted above, indicate that the Resolution Plan was set aside only to the extent it relates to allocation of payment to stakeholders and creditors and directed that revision of payments and subsequent approval of the revised resolution plan was to be completed within a period of two months. Subsequent to order of this Tribunal, the revised proposal for distribution was placed before the Committee of Creditors which came to be approved on 11.05.2022. The revised plan which has been approved indicate that payments to workmen and employees has been increased as well as payment to Financial Creditors. There is little decrease in payment to Operational Creditors, earlier Rs.1.69 Crores were allocated which is now at Rs.1.57 Crores (which has been actually paid).

# 8. It is now well settled that distribution to the creditors in accordance with provisions of Section 30(2) is in the discretion of the Committee of Creditors and with regard to distribution the scope of judicial review by the Adjudicating Authority and this Tribunal is very little. From the facts brought on the record it does appear that liquidation value of the Operational Creditors is nil. When payment of Rs.1.57 Crore has been proposed in the plan, we cannot say that there is violation of any provisions of law especially Section 30(2) of the Code.

# 9. Learned counsel for the Appellant also raised certain contentions with regard to order passed by the Adjudicating Authority by which preferential applications were closed. When the said order closing the applications filed under Section 43, 44 is not subject matter of this Appeal no observation need to be made with regard to said determination by the Adjudicating Authority. It has been noted by the Adjudicating Authority in Para 19 that applications I.A. Nos. 235/18 and 236/18 have already been disposed of and there is no addition of further value to the Corporate Debtor. Insofar as submission of learned counsel for the Appellant with regard to Regulation 29 of the Insolvency and Bankruptcy Board of India. (Liquidation Process) Regulations, 2016 has not been followed, Regulation 29 provides as follows:

• “29. Mutual credits and set-off. – Where there are mutual dealings between the corporate debtor and another party, the sums due from one party shall be set off against the sums due from the other to arrive at the net amount payable to the corporate debtor or to the other party.”

# 10. The present is a case where the Corporate Debtor is not being liquidated rather resolution plan has been approved as per the Insolvency and Bankruptcy Board of India. (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. We are of the view that there is no applicability of Regulation 29 while approving the resolution plan. We, thus, are of the view that such submission of the Appellant cannot be appreciated. In view of the above discussion, we do not find any infirmity in the impugned order of the Adjudicating Authority approving the Resolution Plan. There is no merit in the Appeal. Appeal is dismissed.

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Greater Noida Industrial Development Authority Vs. Mr. Anil Mata RP - Further, in our considered view, the registration of a charge is for the purpose to prove the existence of such a charge, but where the charge is found to have been created by virtue of law, its existence cannot be denied or questioned merely because the charge is not registered.

NCLT New Delhi-2 (24.07.2023) In Greater Noida Industrial Development Authority Vs. Mr. Anil Mata RP [IA. No. 4869/ND/2022 in Company Petition No. (IB)-995(ND)/2018, (2023) ibclaw.in 377 NCLT] held that;

• Further, in our considered view, the registration of a charge is for the purpose to prove the existence of such a charge, but where the charge is found to have been created by virtue of law, its existence cannot be denied or questioned merely because the charge is not registered.

Excerpts of the Order;  

The present IA No. 4869 of 2022 has been filed by Greater Noida Industrial Development Authority (GNIDA), through its Manager (hereinafter referred to as the “Applicant”/ “Objector”) under Section 60(5) of IBC, 2016, read with Rule 11 of NCLT Rules, 2016 seeking the following reliefs: 

• “a) Reject the Resolution Plan put up for its approval in IA. No. 1489/2020; and

• b) Direct the Resolution Professional to serve a copy of application bearing IA. No. 1489/2020 for approval of Resolution Plan upon the Applicant/Objector; and

• c) Pass any such other order/direction which it may deem fit in the interest of justice.”

# 2. To put the facts succinctly, the underlying main Petition CP (IB)- 995/ND/2018 was filed by M/S VMS Equipment Pvt. Ltd. against the Corporate Debtor (CD) namely, M/s Promise Infratech Pvt. Ltd. under Section 7 of IBC, 2016, which was admitted vide Order dated 21.12.2018 of this Adjudicating Authority and the Corporate Insolvency Resolution Process (CIRP) in respect of the CD was initiated. Presently, the Corporate Debtor is represented through its Resolution Professional (RP) Sh. Anil Matta.

# 3. It is submitted that the Applicant/Objector is established under the UP Industrial Area Development Act, 1976 for performing functions as a statutory authority. It is stated by the Applicant that it had acquired the land under the  Land Acquisition Act 1894 and developed the same for the purpose of setting up an Urban and Industrial Township.

# 4. It is further stated by the Applicant that through a sealed two-bid system, it allotted Plot No.GH-06, SECTOR CHI-V, Greater Noida, vide Reservation/Acceptance Letter No. PROP/BRS-05/2010-11/443 dated 25.03.2011 and Allotment Letter No. PROP/BRS-05/2010-11/456 dated 30th March 2011 to the Consortium consisting of M/s Pratham ExpoFab Pvt. Ltd. (Lead Member), M/s PSA Impex Pvt. Ltd. (Relevant Member), M/s Earthcon Constructions Pvt. Ltd. (Relevant Member) and M/s Ajay Kumar Garg, and for the development and marketing of Group Housing Pockets/Flats/Plots. Accordingly, the applicant executed a Registered Lease Deed dated 29.11.2011 in respect of the said plot in favour of the Lessee i.e., Corporate Debtor M/s Primrose Infratech Pvt. Ltd. It is submitted by the Applicant that there is an amount payable by the Corporate Debtor i.e., M/s Primrose Infratech Pvt. Ltd. to the Applicant on account of allotment/premium, additional compensation and time extension Penalties for complete construction, etc. against the said plot of land. Therefore, the applicant demanded the said amount from the lessee/Respondent through demand notice and show cause notices. However, the Respondent failed to make payment.

# 5. It is further submitted that the applicant i.e., GNIDA has already filed the claim of Rs.55,96,80,208/- as of 04.01.2019 with the respondent Mr. Anil  Matta, RP of the Corporate Debtor.

# 6. As per the averments made in the Application, the Applicant/GNIDA has objected to the Resolution Plan on the following grounds, which were also  reiterated by the Ld. Counsel for the Applicant/GNIDA during the course of the hearing:

# 6.1 GNIDA is a secured Creditor within the meaning of Section 3(30) and 3(31) of the Insolvency and Bankruptcy Code, 2016, and Section 13A of the Uttar Pradesh Industrial Area Development Act, 1976. There is a Security Interest created by virtue of Sections 13 and 13A of the Uttar Pradesh Industrial Area Development Act, 1976, which makes the GNIDA, a Secured Creditor in terms of the Judgement of the Hon’ble Supreme Court passed in Civil Appeal No. 1661 of 2020 of the case titled “State Tax Officer (1) Vs. Rainbow Paper Ltd”.

# 6.2. The RP and the COC have erred in bifurcating the claim amount of Rs.55,96,80,208/- into Rs.25,40,03,256/- as Principal & Rs.30,56,76,952/- as interest, compensation, lease, Rent, Penalty and allocated Nil payment in the alleged Resolution Plan.

# 6.3 It is an admitted fact that the lessee/CD namely, M/s Primrose Infratech Pvt. Ltd., which is now under CIRP, has not paid the entire amount of consideration of lease premium, therefore, the leasehold right in respect of the plot in question has not been transferred to the lessee/CD namely M/s Primrose Infratech Pvt. Ltd. The impugned decision of RP and the COC violates the law laid down by the Hon'ble Supreme Court in the judgment dated 29.11.2013 in Civil Appeal No. 10753 of 2013 case titled “Andhra Pradesh Industrial Infrastructure Corporation Limited Vs. Team-Asia Lakhi Semiconductors Limited” (In Liquidation) Represented by The Official Liquidator, Hyderabad and Another, (2014)14 SCC 716.

# 6.4 The dues of a statutory authority/ government authority cannot be overlooked for the purpose of constituting the COC even if it does not fall in the category of the financial creditor. The present resolution plan ignores this obligation; therefore, it should be set aside. If the CoC, the RP, and the RA are unable to conceive and approve a Resolution Plan taking into account the dues of statutory authority/Government authority etc., then it would be a fit case where the corporate debtor should be liquidated.

# 6.5 The Adjudicating Authority may have to examine that public property (i.e., the land of GNIDA) should not be allowed to be monetized by the resolution applicant (SRA) without making a provision to pay the entire outstanding dues of the applicant/Objector and all other government dues. The dues payable to the applicant/objector constitute a charge over the land, which under the resolution plan will be transferred to the SRA without paying the dues. Even when a loan is taken by the respondent from the bank by creating a mortgage, the applicant/ objector has a first charge.

# 6.6 The Resolution Plan is completely conditional, which is impermissible in law and cannot be approved. The conditionality for the transfer of leasehold rights in the Resolution Plan is so gross that it even fixes the timeline for such an alleged transfer without following the law. The Resolution Plan completely ignores that under the Rules and Regulations set by the applicant, there is a procedure to be followed for the transfer of leasehold rights. Even otherwise, the applicant/objector is neither under any obligation to transfer the leasehold right in the Plot to the SRA nor the CoC have the competence or legal right to approve any Plan or make it binding on the applicant.

# 6.7 Under the abovesaid Lease Deed and rules, the first prerequisite for the transfer of leasehold rights is a no-dues certificate regarding premium, additional compensation, lease rentals, and other charges payable under the Lease Deed. Moreover, the transfer formalities are set out in detail including forms to be filled and transfer charges to be paid to the applicant as fixed by the applicant from time to time. In fact, the Resolution Plan pays no heed to the terms and conditions of the Lease Deed, rules, and regulations and does not even provide for the following of formalities. Therefore, the Resolution Plan is unimplementable and in violation of the terms and conditions of the Lease Deed as well as applicable rules and regulations. 

# 6.8 The Resolution Plan violates the law laid down by the Hon'ble Supreme Court’s judgment dated 15.11.2019 passed in Civil Appeal No. 6350 of 2019 titled “Municipal Corporation of Greater Mumbai (MCGM) VS. Abhilash Lal & Ors.”, the relevant excerpts of which are reproduced below:

• “33. The show cause notice in this case preceded admission of the insolvency resolution process. In view of the clear conditions stipulated in the contract, MCGM reserved all its rights and its properties could not have therefore, in any manner, been affected by the resolution plan. Equally in the opinion of this court, the adjudicating authority could not have approved the plan which implicates the assets of MCGM especially when Seven Hills had not fulfilled its obligations under the contract.

• 47. In the opinion of this court, Section 238 cannot be read as overriding the MCGM's right-indeed its public duty- to control and regulate how its properties are to be dealt with. That exists in sections 92 and 92A of the MMC Act. This court is of opinion that section 238 could be of importance when the properties and assets are of a debtor and not when a third party like the MCGM 4s involved. Therefore, in the absence of approval in terms of section 92 and 92A of the MMC Act., the adjudicating authority could  not have overridden MCGM's objections and enabled the creation of a fresh interest in respect of its properties and lands.”

# 6.9 Any stipulation in the Resolution Plan contrary to the terms and onditions of the Lease Deed or any amendment to the Lease Agreement as  sought to be made by the SRA/Resolution Plan is contrary to Regulation 37 of CIRP Regulations. The Applicant, being the Authority established by the State Government under the Uttar Pradesh Act, 1976, its approval is sine qua non for validity of the Resolution Plan in question, particularly qua the terms related to the Lease Deed as well as approvals, which admittedly has not been obtained in the present case. The Resolution Plan is also contrary to the judgment of the Hon’ble Supreme Court in “Jaypee Kensington Boulevard Apartments Welfare Assn. v. NBCC (India) Ltd.”, (2022) 1 SCC 401.

# 7. The Respondent/RP has filed its Reply and stated the following regarding “the background” of the matter -

7.1 The Resolution Plan has been approved by 80.84% votes of the CoC.

7.2 The GNIDA/Applicant filed its claim on 15.10.2019 for an amount of Rs.55,96,80,208/- under Form C, which is a claim form prescribed for a Financial Creditor.

7.3 Pursuant to the filing of the claim of the Applicant, the RP provisionally admitted the said claim in the 4th CoC meeting held on 21.10.2019.

7.4 Subsequently, the Ex-Directors of the Corporate Debtor filed an application bearing no. CA-1511/2019, impugning the claim filed by theGNIDA and consideration of the same as Financial Debt. It was directed by this Adjudicating Authority while hearing CA-1511/2019 that the decision in this regard would be taken by RP, who shall place it before the CoC. The

contents of the order dated 25.11.2019 are reproduced below:

• “CA-1511/2019 has been filed by Ex-Directors impugning the inclusion of the claim filed by the Greater Noida Authority and the same be considered as a Financial debt. The decision to this effect would be taken by the RP who shall put it forth to the COC. Despite notice of the Greater Noida Authority, no one has appeared on their behalf. Let affidavit of service be filed.”

7.5 The RP, in compliance with the aforesaid order, placed the claim of the GNIDA before the CoC in its meeting held on 17.12.2019, wherein the claim of the Applicant was changed from “financial debt” to an “operational debt”.

7.6 Further, this Adjudicating Authority vide order dated 28.02.2020, passed in CA-1511/2019, categorized the claim of the Applicant as an “operational debt”, the relevant extracts of which reads thus:

“7. Keeping in view the citations referred to, this Bench is of the opinion that the claim of the Greater Noida Authority can unequivocally be categorized as being an “operational debt”. We therefore do not find any infirmity in the decision of the Resolution Professional who has deemed it justified to amend and correct the claim of the Greater Noida Authority from one of “financial claim” to an “operational debt”. Accordingly, the CoC which has been reconstituted upon amending the aforesaid claim, consisting of home buyers as financial creditors along with other Financial Creditors, if any, would be vested with the voting rights to the exclusion of Greater Noida Authority.”

7.7 The aforesaid order was challenged before the Hon’ble NCLAT in Appeal CA(AT) (Ins) 55 of 2021, which was dismissed vide order dated 21.06.2021.

7.8 It is further stated that during the pendency of Appeal No. CA(AT)(Ins) 55 of 2021, the Applicant had filed one more application bearing no. CA No. 812/2020 challenging the declaration of the Applicant as an operational creditor, which was dismissed vide order dated 02.07.2021, on the ground that the issue raised by the Applicant has already been decided to vide order dated 28.02.2020. The relevant extracts of the order dated 02.07.2021 are reproduced below:

• “6. In the light of aforesaid order, when we consider the averments made in the present application filed by the applicant, we notice that similar facts/objections were raised by the applicant in CA/ 1511/2019. The applicant, in CA/1511/2019, had challenged the decision taken by the CoC in its 6th meeting dated 17.12.2019, by which the applicant i.e. Greater Noida Authority was declared as an Operational Creditor instead  of Financial Creditor.

• 7. We further observe that this Adjudicating Authority, after considering the submissions of the applicant as well as RP and the decisions referred by the parties, passed a detailed order dated 28.02.2020 and confirmed the decision of the RP, to treat the applicant as an Operational Creditorinstead of Financial Creditor.

• 8. RP has also informed that the applicant has also preferred an appealbefore the Hon'ble NCLAT in Company Appeal (AT) (Insolvency) No.55/2021, which is pending before the Hon'ble NCLAT.

• 9. Having considered the aforesaid facts and the order dated 28.02.2020, we are of the considered view that since the similar issue raised earlier by the applicant in CA/ 1511/2019 has already been decided by this Bench, hence, the present application is not maintainable.”

7.9 The aforesaid order dated 02.07.2021 was also challenged before the Hon’ble NCLAT in Company Appeal (AT) (Ins) No. 1014 of 2021, which too was dismissed vide order dated 10.12.2021.

# 8. The following is stated by the Respondent/RP with regard to the “merits of the Application”:

8.1 That the IBC 2016 by virtue of Section 238 is having an overriding effectover the Uttar Pradesh Industrial Area Development Act 1976.

8.2 Even if the contention of the Applicant is considered and provisions ofthe Uttar Pradesh Industrial Area Development Act 1976 (hereinafter referred to as “UPIAD”) are taken into consideration, the claim of the Applicant would still come under the ambit of an operational debt and the same is liable to be treated in terms of the provisions of the IBC 2016. The contention of the Applicant that an ‘owner’, i.e., the Applicant in the instant case, would have a charge on the property and thereby be treated as a ‘secured creditor’ is irrational. Further, the Applicant even after being aware of the fact that the Resolution Plan is pending before this Hon’ble Tribunal since 2020, has only approached this Hon’ble Tribunal in 2022.

8.3 NOIDA Authority has been declared as an Operational Creditor by the Hon’ble Supreme Court in the matter of “New Okhla Industrial Development Authority Versus Anand Sonbhadra” in Civil Appeal No. 2222 of 2021.

8.4 The treatment given to NOIDA Authority under the Resolution plan as an Operational Creditor is in line with the provisions of IBC 2016.

# 9. Earlier, the matter was heard and reserved for orders. However, vide the order dated 12.04.2023, this Adjudicating Authority had de-reserved the matter with certain directions to the parties. The relevant portion of the order dated 12.04.2023 is reproduced overleaf:

# 10. In compliance with the aforesaid directions, the GNIDA filed its affidavit on 24.05.2023 and has stated the following:

# 11. In compliance with the aforesaid directions, the RP too filed its affidavit 05.05.2023 and stated the following:

# 12. On perusal of the affidavits (ibid), it is observed that in response to query no. 1, the Applicant/GNIDA has annexed the Schedule of payment and due date commencing from 29.09.2011. However, it has made no specific averment as to when the debt of GNIDA became due and payable for the very first time. Nevertheless, the Respondent/RP has averred in its affidavit that the debt of GNIDA became due and payable for the very first time on 30.09.2015.

# 13. Further, as regards query no. 2 and 3, the Applicant has provided a Schedule of payment and due dates in the annexure without any specific averment indicating the exact amount of default towards the “lease rentals” prior to the initiation of CIRP and post-initiation of CIRP. However, the Respondent/RP, in its affidavit, has specifically stated that prior to the initiation of CIRP, the Corporate Debtor committed default of  Rs.43,61,90,319/- in payment of lease rentals to GNIDA, and after the initiation of CIRP, the default of Corporate Debtor in payment of lease rentals stood at Rs.12,34,89,889/- only. It is also noticed that in response to query no. 4, the GNIDA has not specified any property over which it has been claiming to have the creation of Security Interest. 

# 14. We heard the submissions of both parties and perused the documents, Written Submissions, and additional affidavits placed on record by the parties. It is evident from the order dated 21.06.2021 passed in the matter of “Greater Noida Industrial Development Authority Vs. Promod Agrawal & Ors.” in CA (AT) (Ins.) No. 55/2021 and order dated 10.12.2021 in the matter of “Greater Noida Industrial Development Authority v. CA Anil Matta” in CA (AT) (Ins.) No. 1014/2021 that the GNIDA has been confirmed as an Operational Creditor.

# 15. However, through the present IA as well as during the hearing and written submissions, the Applicant/GNIDA has claimed to be a “Secured Operational Creditor”, which has not been tested so far by this Adjudicating Authority. Therefore, we would like to examine “Whether Greater Noida Industrial Development Authority (GNIDA) is a Secured Creditor in terms of Section 3(30) of IBC 2016.

# 16. It is contended by the Applicant/GNIDA that by virtue of Section 13 read with Section 13A, of the Uttar Pradesh Industrial Area Development (UPIAD) Act 1976, security interest was created in favour of the Applicant, which makes the Applicant a “Secured Creditor” in terms of Section 3(30) of IBC, 2016. We would like to examine this contention and accordingly, we refer to Sections 13 and 13A of the Uttar Pradesh Industrial Area Development Act, 1976, which read thus:

# 17. On perusal of the above, it is observed Sections 13 and 13-A of the UPIAD Act 1976 deal with the “Imposition of penalty and mode of recovery of arrears”. From the bare perusal of Section 13, it transpires that in order to trigger the provision of this Section, there has to be a default committed by the Transferee in respect of any of the following:

• (i) payment of any consideration money or installment thereof, or

• (ii) any other amount due on account of the transfer of any site or building by the Authority, or

• (iii) any rent due to the Authority in respect of any lease.

Section 13 also triggers, when the default with respect to the following is committed by any Transferee or Occupier in respect of the payment of any fee or tax levied under this Act. Further, the Chief Executive Officer may direct in addition to the amount of arrears, a further sum not exceeding that amount shall be recovered from the transferee or occupier, as the case may be, by way of penalty.

# 18. In the instant case, the Respondent/RP vide its affidavit dated 05.05.2023 has admitted that the Corporate Debtor had committed a default in payment of lease rentals prior to the commencement of CIRP. Hence, the same qualifies to be a default in terms of Section 13 of the UPIAD Act 1976. Further, it is observed that in terms of Section 13-A of the UPIAD Act 1976, any amount payable to the Authority under Section 13 will constitute a “Charge” over the property.

# 19. At this stage, we refer to the definition of “Secured Creditor” as provided under Section 3(30) of IBC 2016:

• “Secured creditor” means a creditor in favour of whom security interest is created;

• (Emphasis Supplied)

# 20. Further, the term “Security interest” is defined under Section 3(31) of IBC 2016, which reads thus:

• “(31) “security interest” means right, title or interest or a claim to property, created in favour of, or provided for a secured creditor by a transaction which secures payment or performance of an obligation and includes mortgage, charge, hypothecation, assignment and encumbrance or any other agreement or arrangement securing payment or performance of any obligation of any person: (Emphasis Supplied)

# 21. Thus, it is clear that the term “security interest” as defined in IBC, includes “charge”. In view of the above, it won’t be wrong to say that the Creditor in whose favour the “charge” is created is considered “a Secured Creditor”.

# 22. At this juncture, we refer to the Judgement dated 06.09.2022 of the Hon’ble Supreme Court of India passed in the matter of “State Tax Officer (1) Vs. Rainbow Papers Limited” in Civil Appeal No. 1661 of 2020, wherein the following was held:

• “30. The learned Solicitor General rightly argued that in view of the statutory charge in terms of Section 48 of the GVAT Act, the claim of the Tax Department of the State, squarely falls within the definition of “Security Interest” under Section 3(31) of the IBC and the State becomes a secured creditor under Section 3(30) of the Code.

• ..

• 57. As observed above, the State is a secured creditor under the GVAT Act. Section 3(30) of the IBC defines secured creditor to mean a creditor in favour of whom security interest is credited. Such security interest could be created by operation of law. The definition of secured creditor in the IBC does not exclude any Government or Governmental Authority.” (Emphasis Supplied)

# 23. In view of the judgment of the Hon’ble Supreme Court (supra), a security interest can be created by operation of law, and undisputedly,  the Greater Noida Industrial Development Authority (GNIDA) is a Government Authority and the aforesaid observation would be squarely applicable to the facts of the case. Accordingly, in our considered view the Greater Noida Industrial Development Authority (GNIDA) is “a secured creditor” in terms of Section 3(30) of IBC 2016.

# 24. However, it is contended by the RP that provisions of Section 13 and Section 13A are inconsistent with IBC 2016 and the “charge”, in the instant case, has not been registered in terms of Section 77 of the Companies Act, 2013. Therefore, before reaching any conclusion at this stage, we would also like to examine “Whether provisions of Section 13 and Section 13A of Uttar Pradesh Industrial Area Development Act, 1976 are inconsistent with the provisions of IBC, 2016 by virtue of Section 238 of IBC, 2016.”

# 25. It is a matter of fact that CIRP in the instant case commenced on 21.12.2018 and the Moratorium under Section 14(1) came into force from 21.12.2018 only. As per provision under Section 14(1)(a), no proceedings can be initiated against the Corporate Debtor “in any court of law, tribunal, arbitration panel or other authority”. The contents of Section 14(1)(a) read thus:

XXXXX

From the above, it is clear that the Moratorium provisions are applicable to an “Authority” and the GNIDA is undisputedly an Authority. Hence, it emerges that due to the Moratorium under Section 14(1) commenced on 21.12.2018, all the recovery proceedings initiated post-21.12.2018 including security interest, if any, created by virtue of those proceedings are void.

# 26. However, in the instant case, as we have noted earlier in paragraph 13 the Corporate Debtor had committed a default of Rs. 43,61,90,319/-, even prior to the initiation of the Moratorium. Therefore, the provisions of Sections 13 and 13A of the Uttar Pradesh Industrial Area Development Act 1976 had been triggered prior to the initiation of the Moratorium. Hence, we are of the considered view that the “charge” of GNIDA in the instant case has been created by virtue of law i.e., in terms of Sections 13 and 13A of the Uttar Pradesh Industrial Area Development Act 1976 well before the Moratorium period and Section 14 (1) of IBC 2016 will not create an escape route for the Corporate Debtor to get an exemption from the charge created by virtue of law under Section 13A of the Uttar Pradesh Industrial Area Development Act, 1976. Since, in the instant case, the security interest of GNIDA was created by virtue of the operation of law prior to the commencement of CIRP/Moratorium, we see no inconsistency between the provision of Sections 13 and 13A of the Uttar Pradesh Industrial Area Development Act, 1976 and IBC 2016, hence the provisions of Section 238 of IBC, 2016 do not get attracted to.

# 27. It is further contended by the RP that the charge has not been registered in terms of Sections 77 and 78 of the Companies Act 2013. The Ld. Counsel for the RP further relied upon the judgment dated 18.12.2019 of Hon’ble NCLAT passed in the matter of “Indiabulls Housing Finance Ltd. vs. Mr. Samir Kumar Bhattacharya & Ors.” in Company Appeal (AT) (Ins.) No. 830/2019, wherein the following was held:

• “9. It is thus clear that the CoC had made it clear that in absence of Charge being registered, the Appellant could not be treated as Secured Financial Creditor. Although the transaction is stated to be of 2012, it is clear that the Charge was not got registered either by the Corporate Debtor or the Appellant till now on 03.10.2019 which is after the Resolution Plan was approved on 04.07.2019. Section 77 of the Companies Act, 2013 required the Charge to be registered and the Appellant had an option to resort to even Section 78 of Companies Act, 2013, if there were any grievances. Not having done so, when CIRP started trying to rely on the equitable mortgage without a charge created, we do not find there was any error in the CoC meetings which in its wisdom did not recognize creation of security. The transaction did not even reflect in the Books of Account of the Corporate Debtor. Appellant should be happy that it has been at least treated as Financial Creditor. Appellant took no actions since 2012 and till late stage of CIRP. Charge registered after Resolution Plan is approved cannot be considered.”    (Emphasis Supplied)

# 28. From the Judgement (supra), it transpires that the security interest in “Indiabulls Housing Finance Ltd. vs. Mr. Samir Kumar Bhattacharya & Ors.” was not created by virtue of law, and therefore, the findings of the aforesaid judgment are not applicable to the facts of the present case. Further, in our considered view, the registration of a charge is for the purpose to prove the existence of such a charge, but where the charge is found to have been created by virtue of law, its existence cannot be denied or questioned merely because the charge is not registered.

# 29. In the sequel to the aforesaid discussion, we conclude that – 

• (a) the Greater Noida Industrial Development Authority (GNIDA) is “a secured creditor” in terms of Section 3(30) of IBC 2016;

• (b) the “charge” of GNIDA in the instant case has been created by virtue of law i.e., in terms of Sections 13 and 13A of the Uttar Pradesh Industrial Area Development (UPIAD) Act 1976 well before the Moratorium period and Section 14 (1) of IBC 2016 will not create an escape route for the Corporate Debtor to get an exemption from the charge created by virtue of law under Section 13A of the UPIAD Act, 1976;

• (c) there is no inconsistency between the provision of Sections 13 and 13A of the UPIAD Act, 1976 and IBC 2016, hence the provisions of Section 238 of IBC, 2016 do not get attracted to.

# 30. In view of the aforesaid discussion and findings, the Applicant herein shall be treated as “Secured Operational Creditor”.

# 31. Nevertheless, we do not espouse at what priority and in what position the Applicant would be placed under the Waterfall Mechanism. 

# 32. The Application is disposed of accordingly.

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