Bombay High Court
M/S Kwality Catering Services Thr Its ... vs Jitender Kumar Jain, Liquidator Of Aaj ... on 23 April, 2024
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
Digitally signed
by AARTI
AARTI GAJANAN
GAJANAN PALKAR
PALKAR Date:
2024.04.25
20:06:07 +0530
2.WP.10244.2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10244 OF 2023
Jitender Kumar Jain, Liquidator Of Aaj Ka ...Petitioner
Anand Papers Ltd.
Versus
Union Of India Through The Ministry Of ...Respondents
Corporate Affairs And Ors
WITH
INTERIM APPLICATION NO. 15869 OF 2023
IN
WRIT PETITION NO. 10244 OF 2023
Mrs. Ritu Anand Agarwal And Ors ...Applicants
In the matter between:
Jitender Kumar Jain, Liquidator Of Aaj Ka ...Petitioner
Anand Papers Ltd.
Versus
Union of India and Ors. ...Respondents
WITH
INTERIM APPLICATION NO. 15867 OF 2023
IN
WRIT PETITION NO. 10244 OF 2023
Aaj Ka Anand Publications LLP Licensee In ...Applicant
The Premises
In the matter between:
Jitender Kumar Jain, Liquidator Of Aaj Ka ...Petitioner
Anand Papers Ltd.
Versus
Union of India and Ors. ...Respondents
Page 1 of 8
APRIL 23, 2024
Aarti Palkar
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2.WP.10244.2023.doc
WITH
INTERIM APPLICATION NO. 15868 OF 2023
AND
INTERIM APPLICATION NO. 11237 OF 2024
IN
WRIT PETITION NO. 10244 OF 2023
M/s Kwality Catering Services through Its ...Applicant
Authorised Signatory
In the matter between:
Jitender Kumar Jain, Liquidator Of Aaj Ka ...Petitioner
Anand Papers Ltd.
Versus
Union of India and Ors. ...Respondents
WITH
INTERIM APPLICATION NO. 14368 OF 2023
IN
WRIT PETITION NO. 10244 OF 2023
Jitender Kumar Jain, Liquidator Of Aaj Ka ...Applicant/Petitioner
Anand Papers Ltd.
Versus
Union Of India Through The Ministry Of ...Respondents
Corporate Affairs And Ors
WITH
INTERIM APPLICATION (ST) NO. 16421 OF 2023
IN
WRIT PETITION NO. 10244 OF 2023
State Bank Of India ...Applicant
In the matter between: ...Petitioner
Jitender Kumar Jain, Liquidator Of Aaj Ka
Anand Papers Ltd.
Versus
Union of India and Ors. ...Respondents
Page 2 of 8
APRIL 23, 2024
Aarti Palkar
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2.WP.10244.2023.doc
Mr. Mustafa Doctor, Senior Counsel a/w. Nimay Dave, Rahul
Dev, Arjun Amin i/b. Argus Partners, Advocates for Petitioner in
WP/10244/2023 and for Applicant in IA/14368/2023.
Mr. Ashish Mehta i/b Ethos Legal Alliance for Respondent Nos.1 & 2.
Mr. A.I. Patel, Addl.GP a/w. Ms. M.S. Bane, AGP for
Respondent/State.
Mr. Cyrus Ardeshir a/w. Shadab Jan, Sujit Lahoti, Sonam Pandey,
Aditya Sheth, Sujit Lahoti & Associates for Applicant in
IA/15867/2023.
Mr. Mayank Bagla a/w Hiten Lala i/b. Durgesh Rege for Applicant in
IA/15869/23/Suspended Directors.
Mr. Bhalchandra Palav a/w. Aniket Dighe i/b. Bhai & Co. for
Intervenor-Edelweiss Asset Reconstruction Co. Ltd. (Secured
Creditor).
Mr. Aliabbas Delhiwala i/b. Saurabh Patil for Applicant in
IA/15868/23 & IA/ST/11237/24.
CORAM : B. P. COLABAWALLA &
SOMASEKHAR SUNDARESAN, JJ.
DATE : APRIL 23, 2024 P. C.
1. By our Order dated 12th October, 2023, we had recorded the statement made by the learned counsel appearing on behalf of Aaj Ka Anand Publication LLP ("LLP") that the said LLP continues to be in occupation of office premises on the first floor of a building named "Aaj Ka Anand" together with one car parking situated at final plot Page 3 of 8 APRIL 23, 2024 Aarti Palkar ::: Uploaded on - 26/04/2024 ::: Downloaded on - 11/05/2024 21:28:27 :::
2.WP.10244.2023.doc No.713+714/6, CTS No.364+365/6 Bhamburda [Shivaji Nagar], Taluka Haveli, District-Pune under a leave and licence agreement dated 30th June, 2021, entered into between the said LLP and the Corporate Debtor [Aaj Ka Anand Papers Ltd]. It was the submission of the learned counsel that until this Interim Application filed by the LLP is heard, he ought not to be dispossessed from his licenced premises.
2. In answer to this argument, it was pointed out to us that the aforesaid leave and licence agreement has not only been entered into after filing of a petition by State Bank of India under Section 7 of the Insolvency and Bankruptcy Code, 2016, but even after a securitisation notice under Section 13(2) of the Securitisation And Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002 ["SARFAESI Act, 2002"] was issued to the Corporate Debtor. In short, it was the argument of the Liquidator [the Petitioner] that by virtue of Section 13(13) of the SARFAESI Act, 2002, no leave and licence agreement could have been created in favour of the LLP as there was a statutory bar under the said provision.
3. Considering these facts, as a working arrangement, and without prejudice to the rights and contentions of all parties, the learned counsel appearing for the LLP, on instructions, stated that Page 4 of 8 APRIL 23, 2024 Aarti Palkar ::: Uploaded on - 26/04/2024 ::: Downloaded on - 11/05/2024 21:28:27 :::
2.WP.10244.2023.doc even though the leave and licence agreement is for an area of 2043 sq. ft, [carpet area], since the LLP was occupying the entire first floor, and the valuation report procured by Mr. Anand Agarwal [as a Director of the Corporate Debtor] shows the area of the first floor as 3948 sq.ft. carpet area, the LLP would pay the arrears of licence fees for this entire area as a condition precedent for not being dispossessed. It was also agreed between the parties that the arrears of licence fees would be calculated at the rate of Rs.99.19 per sq. ft. On the amount of license fees, 18% GST would also have to be paid. Accordingly, we had ordered that the arrears of licence fees upto 31 st October, 2023, amounting to Rs.74,40,440/- as well as the GST @ 18% coming to Rs.13,39,279/- [amounting to an aggregate amount of Rs.87,79,720/-] would be paid in installments as more particularly set out in Paragraph 5 of the Order dated 12th October, 2023.
4. It is not in dispute that this amount has in fact been paid. However, the grievance made today is that from 1 st November, 2023, the LLP continues to occupy the licenced premises and has not paid a farthing towards the same. In these circumstances, when the matter was placed before us yesterday, we had asked Mr. Ardeshir, the learned counsel appearing on behalf of the LLP to take instructions as to when payment would be made for the period commencing from 1 st November, 2023. Today when the matter is called out, Mr. Ardeshir, Page 5 of 8 APRIL 23, 2024 Aarti Palkar ::: Uploaded on - 26/04/2024 ::: Downloaded on - 11/05/2024 21:28:27 :::
2.WP.10244.2023.doc on instructions, has fairly stated that the licence fees payable from 1 st November, 2023 till 30th April, 2024 comes to an amount of Rs.23,49,612/-. 18% GST on this amount comes to Rs.4,22,928/-. Hence, the total arrears that would be payable [including GST] would come to a figure of Rs.27,72,540/-. Mr. Ardeshir fairly submitted that this amount of Rs.27,72,540/- [which is inclusive of GST] shall be paid by the LLP in the Liquidation account in the following schedule :
DUES PAYABLE BY M/S. AAJ KA ANAND PUBLICATION LLP Schedule of Payment Serial No. Due Date of Payment Amount (In Rupees)
1. On or before 27.04.24 5,84,585.60 (incl of GST @ 18%)
2. On or before 04.05.24 5,84,585.60 (incl of GST @ 18%)
3. On or before 18.05.24 5,84,585.60 (incl of GST @ 18%)
4. On or before 25.05.24 5,09,391.60 (incl of GST @ 18%)
5. On or before 01.06.24 5,09,391.60 (incl of GST @ 18%) Total 27,72,540
5. The aforesaid amounts shall be paid in the Liquidation bank account of Aaj Ka Anand Papers Limited [Corporate Debtor], the details of which are as under :
Beneficiary Aaj Ka Anand Papers Limited - In Liquidation Bank and Branch Kotak Mahindra Bank Ltd., Sharda Terraces, Address Plot No. 65, Sector - 11, CBD Belapur, Navi Mumbai, Maharashtra - 400614.
Account No. 8748059205 IFSC Code KKBK0000660 Page 6 of 8 APRIL 23, 2024 Aarti Palkar ::: Uploaded on - 26/04/2024 ::: Downloaded on - 11/05/2024 21:28:27 ::: 2.WP.10244.2023.doc
6. As far as the payment of licence fees for the months of May and June are concerned, Mr. Ardeshir has stated that they come to Rs.3,91,602/- per month excluding GST. The GST on this amount is Rs.70,489/-. Hence, the total amount that would be payable for the months of May and June 2024 would be Rs.4,62,091/- per month.
This amount of Rs.4,62,091/- for the month of May 2024 shall be paid on or before 7th May, 2024, in the above mentioned account and for the month of June 2024, the exact same amount, namely, Rs.4,62,091/-, shall be paid on or before 7 th June, 2024. The said statement is accepted as an undertaking given to the Court.
7. Since the leave and licence agreement in any event expires on 30th June, 2024, the LLP shall vacate the premises occupied by them and hand over physical possession of the said premises to the Liquidator on or before 3rd July, 2024. If for any reason, the aforesaid direction is not complied with, the Shivaji Nagar Police Station, Pune shall give all necessary assistance to the Liquidator to ensure that physical possession of the licensed premises is taken by the Liquidator and that the same is vacated by the LLP, or any one else occupying the same, failing which the concerned Senior Police Inspector of the Shivaji Nagar Police Station, Pune shall be liable for contempt. It is needless to clarify that charges, if any, that are required to be paid for the police assistance shall be paid out of the Page 7 of 8 APRIL 23, 2024 Aarti Palkar ::: Uploaded on - 26/04/2024 ::: Downloaded on - 11/05/2024 21:28:27 :::
2.WP.10244.2023.doc Liquidation account of Aaj Ka Anand Papers Limited [Corporate Debtor].
8. It is further ordered that in the event, the LLP commits any default in the payment as set out in this order, the Liquidator shall be entitled to forthwith take physical possession of the licenced premises and dispossess the LLP or any one else found therein from the licenced premises with the help of Shivaji Nagar Police Station, Pune, who shall render all the necessary police assistance as set out earlier.
9. We now place the above matters on Board on 8th July, 2024.
10. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order. [SOMASEKHAR SUNDARESAN, J.] [B.P. COLABAWALLA, J.] Page 8 of 8 APRIL 23, 2024 Aarti Palkar ::: Uploaded on - 26/04/2024 ::: Downloaded on - 11/05/2024 21:28:27 :::