New Okhla Industrial Development Authority vs Kashi Vishwanathan Sivaraman & Anr.

18.04.2024: Heard learned counsel for the Appellant as well as learned counsel appearing for the Respondent. This Appeal has been filed against order passed by the Adjudicating Authority dated 22.12.2023 in I.A. No.827 of 2023. The IA was filed by the Appellant New Okhla Industrial Development Authority seeking declaration that they are Secured Creditors. Further, by the application they have raised objections to the Resolution Plan. The Adjudicating Authority rejected the application by the impugned order. Appellant challenging the order dated 22.12.2023 has filed this Appeal.

When the Appeal was taken, this Tribunal passed following order on 13.02.2024:

Learned counsel for the Appellant submits that Reply Affidavit has been filed by the Respondent No.1. Learned counsel for the Appellant submits that a recent judgment of this Tribunal delivered in “Company Appeal (AT) (Ins.) No. 1147 of 2023 and 519 of 2023, Mr. Anil Matta vs. Greater Noida Industrial Development Authority” dated 09.04.2024 fully covers the issue in the present appeal.

Learned counsel for the Respondent submits that factual matrix of the judgment of Hon’ble Supreme Court in “Greater Noida Industrial Development Authority vs. Prabhjit Singh Soni & Anr., Civil Appeal Nos.7590-7591 of 2023” and the present case are entirely different. It is submitted that the NOIDA Authority has not filed any claim in the CIRP whereas in the case of Prabhjit Singh Soni claim was filed although in different form. It is submitted that two letter were issued but no claim was filed. When the plan was approved by the CoC then application was filed by NOIDA Authority being I.A. No.827 of 2023. Learned counsel for the Respondent further submits that the lease deed in the present case has not been cancelled.

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

It is not disputed that the Corporate Debtor entered into lease with NOIDA Authority and the dues of the NOIDA Authority have not been paid, which has already been noted in Para 4 of the impugned order. When the dues are there on the Corporate Debtor, by virtue of Section 13A, it is charge on the assets of the Corporate Debtor. The mere fact that Appellant has not filed claim does not disentitle the Appellant to appear before the Adjudicating Authority and file application objecting the Resolution Plan which does not consider the claim of the Appellant in accordance with law. Even if, no claim is filed by the Appellant, Resolution Professional is duty bound to consider the debt as reflected in the records of the Corporate Debtor.

Learned counsel for the Resolution Professional sought to contend that the claim was not reflected in the Information Memorandum. Learned counsel for the Resolution Professional, however, submits that the NOIDA Authority was treated as an Operational Creditor and an amount of Rs.10 Crore was earmarked in the plan.

NOIDA Authority was the lease holder and the records of lease were already with the Resolution Professional being record of the Corporate Debtor, therefore, the claim has to be reflected by the Resolution Professional in the Information Memorandum.

We, thus, are of the view that in view of the judgment of this Tribunal in Anil Matta’s case (supra) as well as judgment of Hon’ble Supreme Court in Prabhjit Singh Soni (supra), the Appellant is clearly a Secured Operational Creditor. Hence, we are of the view that the order of the Adjudicating Authority rejecting the application of NOIDA Authority is unsustainable. We set aside order dated 22.12.2023. Hold the Appellant as Secured Operational Creditor. The Adjudicating Authority may proceed accordingly in accordance with law.

We make it clear that we have not entered into any other issued in the appeal except issue of claim of NOIDA Authority. It shall be open for both the parties to raise all other issues before the Adjudicating Authority. The Adjudicating Authority may consider the application for approval of Resolution Plan expeditiously in accordance with law.