► Head notes :

Insolvency and Bankruptcy Code, 2016 - Section 30(6) - The Resolution Professional (RP) preferred IA under Section 30(6) 2016 r/w Regulation 39(4) seeking approval of the Resolution Plan of ACE Urban Developers Private Limited as duly approved by the Committee of Creditors - The Adjudicating Authority, while approving the Resolution Plan has observed that the Resolution Plan is higher than the Liquidation Value and the Resolution Plan has been approved by the CoC in the 16th CoC Meeting with 100% votes in favour of it and the Resolution Plan also satisfied the requirements of Section 30(2) and Regulation 37, 38, 38(1A) and 39(4) of the Regulations - NCLAT - The Resolution Plan was approved by the Adjudicating Authority after almost a year after the lodging of the initial FIR and this Tribunal does not have jurisdiction to decide the title of the land more so when a Civil Suit has already been preferred by the Appellant and they have already opted for seeking a remedy before the Civil Court - Appeal is with respect to the Dispute regarding the Title of the Subject Land which the Appellant claims was erroneously included in the assets of the Corporate Debtor by the Resolution Professional, which subject matter is already seized by the Civil Court - Appellant may work out its remedy for redressal of its grievances, before the `Civil Court of Law itself, ofcourse, in accordance with `Law, if it so desires / advised - Appeal Dismissed

► Name of Judge : Justice M. Venugopal Member (Judicial) & Shreesha Merla Member (Technical)

► Order:

Shreesha Merla

1.    Aggrieved by the Impugned Order dated 03.01.2022 passed by the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench, Hyderabad) in IA (IBC)/214/2021 in CP(IB) No. 143/7/HDB/2019, by which order the ‘Adjudicating Authority’ has approved the ‘Resolution Plan’ observing that it is in compliance of Regulation 38 of the CIRP Regulations, 2016. M/s. People Tech Infracon Pvt. Ltd/ the ‘Appellant’ preferred this ‘Appeal’ under Section 61 of the ‘Insolvency and Bankruptcy Code, 2016’ (hereinafter referred to as ‘The Code’).
 

2.    Facts in brief are that the ‘‘Resolution Professional’’ (RP) preferred IA (IBC)/214/2021 under Section 30(6) 2016 r/w Regulation 39(4)  of  the ‘Insolvency and Bankruptcy Board of India’ (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 seeking approval of the ‘Resolution Plan’ of ‘ACE Urban Developers Private Limited’ (hereinafter referred to as the ‘Resolution Applicant’) as duly approved by the ‘Committee of Creditors’ (CoC). The ‘Adjudicating Authority’, while approving the Resolution Plan has observed that the Resolution Plan value of Rs.  107.10  Crores  is  higher  than  the Liquidation Value of Rs. 91.35 Crores  and  the  Resolution  Plan  has  been approved by the CoC in the 16th CoC Meeting with 100% votes in favour of it. It is also observed in the Impugned Order that the Resolution Plan also satisfied the requirements of Section 30(2) of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the ‘Code’) and Regulation 37, 38, 38(1A) and 39(4) of the Regulations.
 

3.    Mr. P.Nagesh, Learned Senior Counsel appearing for the ‘Appellant’ submitted that the ‘Appellant’ is a third party to the impugned Company Petition and is aggrieved by the impugned order because of the fact that the property of the ‘Appellant’ is being treated as the property of the Corporate Debtor. Learned Senior Counsel has drawn our attention to the relevant documents in support of his argument that the said land belonged to the ‘Appellant’ herein. It is submitted that Dr.VVS Sarma had the rights in landed property in Plot Nos. 6-A, 6-B, 6-C and 6-D, admeasuring 2,250 square feet and Survey No. 129 (old) Survey No.403 (new) in Shaikpet Village in Road No. 10 of Banjara Hills and he had acquired rights through ‘Agreement of Sale’ in the year 1984. G.O.Ms. No.481 Rev (Assgn.III) dated 12.04.2005 was issued by State Government of Andhra Pradesh alienating Ac 2-05 Guntas (8,569 Square meters or 10,285 Square yards) land in T.S No. 6/1 part of Ward no.11 of Shaikpet Village and Mandal situated at Road No. 10, Banjara Hills, Hyderabad in favour of A.P.Gems and Jewellery Park Pvt. Ltd, arrayed herein as 1st Respondent. Dr. VVS Sarma, the  ‘Appellants Predecessor applied for NOC for land identified with reference to sale deed No. 1255/1965 and applied for a joint inspection in the year 2014 which revealed that Dr. VVS Sarma got a genuine claim over land admeasuring 1,853 Square meters which was enclosed by a compound wall with relevant permission from Municipality. It is submitted that the land of the ‘Appellants’ Predecessor and that of the Corporate Debtor are adjoining each other and the land of ‘Appellants’ Predecessor is demarcated by a compound wall. Dr. K.V.Srinivas, 4th Respondent got an ‘First Information Report’ (FIR) registered in Banjara Hills Police Station, Hyderabad on 04.02.2021 while the ‘Appellants’ Predecessor was conducting activity in their property. The 4th Respondent who is the ‘‘Resolution Professional’’, brought this fact to the knowledge of the ‘Adjudicating Authority’ but did not get any survey done demarcating the property of the Corporate Debtor with that of the ‘Appellants’ Predecessor. It is submitted that the ‘Resolution Professional’ also kept the Resolution Applicant in the dark and is trying to portray that the property belongs to the Corporate Debtor.
 

4.    Learned Senior Counsel for the ‘Appellant’ has submitted that the ‘Appellant’ had approached the ‘Competent Civil Court Authority’ seeking perpetual injunction restraining the Respondent from alienating or possessing or entering the property of the ‘Appellant’ herein and the ‘Competent Civil Court’ had granted an ex parte ad interim injunction in favour of the ‘Appellant’ restraining Respondents No.1, 2 and 4 in the present ‘Appeal’ from disturbing the peaceful possession of the ‘Appellant’. Despite this order, the ‘Resolution Applicant’ and the ‘‘Resolution Professional’’ misrepresented that the  said property is belonged to the Corporate Debtor.
 

5.    It is submitted that the Resolution Plan is adversely affecting the rights of the ‘Appellant’ and that the ‘Adjudicating Authority’ was not justified in approving the Resolution Plan which extinguishes the rights of the third party. It was also submitted that it was only after the lodging of the FIR that the ‘Appellant’ herein had come to know that the said property was included in the list of the assets of the Corporate Debtor.
 

6.    Mr. P.H. Arvindh Pandian, Learned Senior Counsel appearing for the Corporate Debtor drew our attention to the grounds of ‘Appeal’ in which the ‘Appellant’ has submitted that ‘Civil Suit OS No. 903 of 2022’ was preferred seeking permanent injunction of the said property against the Respondent. Learned Senior Counsel drew our attention to Writ Petition No.17412 of 2022 preferred by the ‘Appellant’ herein before the Hon’ble High Court for the State of Telangana, wherein the Hon’ble High Court has dismissed the Writ Petition finally holding that there was no ground to grant any relief. It is observed from the Writ Petition (supra) that the 1st Respondent is State of Telangana’, A.P.Gems and Jewellery Park Private Limited, has been arrayed as the 2nd Respondent and the Successful Resolution Applicant as the 3rd Respondent. It is also submitted by the Learned Senior Counsel that a CMA has been filed and orders were reserved in August, 2022 and that the Corporate Debtor was always in possession of the subject land.

Assessment:

7.    It is seen from the record that the first FIR No. 140/2021 was lodged on 04.02.2021 and, therefore, it cannot be said that the ‘Appellant’ was not in knowledge of the subject case. It is also seen from the record that two more FIRs were lodged by the ‘Resolution Professional’ against the ‘Appellant’ and their agents for their attempts to enter the premises of the ‘Corporate Debtor’. The Resolution Plan was approved by the ‘Adjudicating Authority’ vide an order dated 03.01.2022 which is almost a year after the lodging of the initial FIR. Be that as it may, this Tribunal does not have jurisdiction to decide  the  title  of  the  land more so when a Civil Suit has already been preferred by the ‘Appellant’ herein and they have already opted for seeking a remedy before the Civil Court. It is pertinent to mention that the Hon’ble High Court of Telangana in Writ Petition No. 17412 of 2022 preferred by the Petitioner/’Appellant’ herein seeking a direction against the State of Telangana for  considering  their  representation dated 24.03.2022, wherein the Petitioner/ ‘Appellant’ herein has sought for cancellation of the allotment of the land made in favour of M/s. A.P.Gems and Jewellery Pvt. Ltd. and for allotment of the same in favour of the Petitioner/’Appellant’ has dismissed the Writ Petition observing as follows:
“The petitioner made the following request in the said representation dated 24.03.2022.

"We are considering construction of a Hospital very seriously and even though it may not bring as much recognition as was expected from an International Standard Showroom-cum-Marketing Complex for Gems and Jewellary, but would definitely create jobs.

Kindly note that we are not expecting any subsidized rate for the acquisition of the land and would be witling to pay the best price possible to the Government apart from compensating A.P.Gems & Jewellary Park Private Limited for the money they had spent as stated above.

Hope for earliest response so that this proposal can be properly evaluated and further negotiated"

4.    The request of the petitioner is to cancel the allotment of land made in favour of the Respondent No.2 and for allotment of the same in favour of the petitioner. Either in the said representation or in the entire affidavit filed in support of the above Writ Petition the petitioner failed to assert any legal, statutory or constitutional right to seek consideration of the case of the petitioner for allotment of the land as requested by the petitioner  in the said representation dated 24.03.2022.

5.    In the absence of violation of legal, statutory or constitutional right of the petitioner and in the absence of any corresponding duty cast on the  respondent no writ can be issued at the instance of the petitioner. Further though the representation is submitted to the Chief Secretary and Spl.Chief Secretary, the said Chief Secretary and Spl.Chief Secretary is not made party to the Writ Petition and it is also not stated how the said Chief Secretary and  Spl.Chief  Secretary  is  the competent authority to consider the request  made  by the petitioner under representation dated 24.03.2022. Further, the Writ Petition is also filed with undue haste within ten (10) days/ even before expiry  of  ten  (10) days from the date of submission of the said representation of the petitioner. In view of  the  above this Court does not find no ground to grant any relief to the petitioner.

6.    Accordingly, this Writ petition is dismissed.”

8.    The WP  17412/2022  is  dated  04.04.2022  subsequent  to  the  filing  of  this ‘Appeal’ which is dated 30.03.2022. Having regard to the fact that the main issue raised in this ‘Appeal’ is with respect to the ‘Dispute’ regarding the ‘Title’ of the ‘Subject Land’ which the ‘Appellant’ claims was erroneously included in the assets of the ‘Corporate Debtor’ by the ‘Resolution Professional’, which subject matter is already seized by the ‘Civil Court’, this ‘Appeal’ is dismissed as devoid of merits. Needless to add, the ‘Appellant’ may work out its remedy for redressal of its grievances, before the `Civil Court of Law’ itself, ofcourse, in accordance with `Law’, if it so desires / advised.

For all the foregoing reasons, the instant Comp. App (AT) (CH) (INS.) No. 428 of 2022 is devoid of merits and the same is dismissed, but without costs. The connected pending `Interlocutory Applications’, if any, are closed.
 

► Summery :

NCLAT, Chennai - The Resolution Plan was approved by the Adjudicating Authority after almost a year after the lodging of the initial FIR and this Tribunal does not have jurisdiction to decide the title of the land more so when a Civil Suit has already been preferred by the Appellant and they have already opted for seeking a remedy before the Civil Court. Appeal is with respect to the Dispute regarding the Title of the Subject Land which the Appellant claims was erroneously included in the assets of the Corporate Debtor by the Resolution Professional, which subject matter is already seized by the Civil Court. Appellant may work out its remedy for redressal of its grievances, before the `Civil Court of Law itself, ofcourse, in accordance with `Law, if it so desires / advised