Palika Towns Llp vs State Of U P And 2 Others on 27 May, 2022

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Allahabad High Court

Palika Towns Llp vs State Of U P And 2 Others on 27 May, 2022

Author: Surya Prakash Kesarwani

Bench: Surya Prakash Kesarwani





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 						A.F.R. 
 
Court No. - 03			    
 
					Reserved on: 21.04.2022
 
			  Delivered on: 27.05.2022                       				
 

 
IN THE HIGH COURT OF ALLAHABAD
 
CIVIL MISC. WRIT (C ) PETITION No. - 10123 of 2021
 
Palika Towns LLP Vs.  State Of U P And 2 Others
 
Counsel for Petitioner :- Manu Khare	    
 
Counsel for Respondent :- C.S.C.,Anjali Upadhya,Ramendra Pratap Singh
 

 
Contents
 
EPILOGUE.....................................................2
 
ARGUMENT OF THE PETITIONER.................14 
 
ARGUMENT OF RESPONDENTS....................17 
 
REPLICATION ON BEHALF OF PETITIONER..19
 
QUESTION OF DETERMINATION...................19
 
SYMPOSIUM...................................................20
 
SUMMATION..................................................73 CONCLUSION.................................................75
 
Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Vikas Budhwar,J.

(Per Hon'ble Vikas Budhwar,J.)

1. Heard Sri Navin Sinha, learned Senior Counsel assisted by Sri Manu Khare, learned counsel for the petitioner, Sri Ramendra Pratap Singh, learned counsel for the respondent no. 2 (Greater Noida Industrial Development Authority) and Smt. Subhash Rathi, learned Standing Counsel who appears for the State.

EPILOGUE "The extent and the scope of judicial intervention in writ jurisdiction in the matter of contractual obligation embodied in the commercial contract is a subject matter of present petition."

2. Factual matrix of the case as worded in the present petition are that the petitioner claims itself to be a Partnership firm registered u/s 12 (I) of Limited Liability Partnership Act 2008 with Government of India Ministry of Corporate Affairs having its registered office at D.S.C.- 319 DLF South Court Saket New Delhi 110017. As per the pleadings set forth in the petition one Moser Baer India Private Ltd. (hereinafter referred as Corporate Debtor) was allotted a commercial plot no. 66 admeasuring 2,70,201 square meters at Udyog Vihar Greater NOIDA, District Gautam Budh Nagar by the respondent no. 2 Greater NOIDA Industrial Development Authority (hereinafter referred as GNIDA) for a period 90 years. Record further reveals that initially the lease deed was executed on 26.06.2001 between GNIDA on one part and Corporate Debtor on the other part setting out the terms and the conditions (covenants) of the leased land in question. It is further pleaded in the petition that an application purported to be u/s 7 of the Insolvency and Bankruptcy Code 2016 (hereinafter referred to as IBC Code) was instituted by a Financial Creditor being M/s Alchemist Assets Reconstruction Company Limited bearing no. I.B.378 (P.B.) 2017 for initiating Insolvency Resolution Process against Carporate Debtor. The said application was admitted on 14.11.2017 by National Company Law Tribunal (NCLT) and one Mr. Debendra Singh was appointed as Interim Resolution Professional (hereinafter referred to as IRP).

3. Eventually, NCLT by virtue of its order dated 20.09.2018 allowed the application preferred by IRP u/s 33(2) IBC Code while orderding Liquidation of Coroprate Debtor. In furthrance thereof the Liquidator made a public announcement on 24.09.2018 under Regulation 12 of the Insolvency and Bankruptcy (Lilquidation Process) Regulation 2016 (hereinafter referred as to 2016 Regulation) inviting claims owed and due to Corporate Debtor giving details and description of the assets of Corporate Debtor such as location of the land and buildings so constructed thereon along with the plant and machinery embodied thereon. An advertisement/sale notice of the assets of the Corporate Debtor was published on 08.03.2019 by the Liquidator wherein not only details and description of the assets including the land and the buildings was mentioned which was put to auction but reserve price of auction being bieng 145.67 crores and the earnest money to be deposited being 14.57 crores was also reflected. The petitioner as per its own showing, participated in the auction so conducted and the bid of the petitioner was found to be commensurate to the expectation of the Liquidator. Consequently, the NCLT accepted the offer of the petitioner on 16.07.2019 and the petitioner thereafter received the acceptance letter dated 16.07.2019 of the Liquidator. According to the petitioner, full and final payment of Rs. 145.75 crores was made by it and on 11.09.2019 and a Certificate of Sale under Regulation 33 of 2016 Regulation was issued in favour of the petitioner. Consequent to the issuence of the sale certificate on 11.09.2019 the petitioner approached GNIDA on 30.01.2020 followed on 11.09.2020 for issuance of Transfer Memorandum. It has come on record that on 11.09.2020 GNIDA corresponded with the Liquidator claming arrears of past lease rentals of Rs. 4,71,40,620/- as principal dues and interest towards lease rentals of Rs. 6,26,86,769/-. Record further reveals that the liquidator replied to the said letter on 08.10.2020 coming with the stand that as the demised land had already been subject matter of public auction as per the IBC Code- 2016, objections were invited to file claims for getting registered by the creditors and as GNIDA did not get registered its claim so, the auction proceedings were concluded and the same was also confirmed by NCLT hence the request so acceded by the GNIDA cannot be accepted. It has been further averred in para 14 of the writ petition that the petitioner wanted to start with its project and thus under extreme pressure of the GNIDA, the petitioner deposited the arrears of lease rent and interest thereon beng Rs. 5,80,28,025/- for issuance of Transfer Memorandum on 27.10.2020 under protest. In support of the said contention petitioner has appended as annexure- 10 a letter sent by it addressed to GNIDA which is being termed as protest letter along with details of the deposits so sought to be made by it.

4. According to the petitioner finally the Transfer Memorandum was issued by GNIDA on 24.12.2020, a copy whereof has been appended at page 79 of the writ petition.

5. Lamenting quiescent demeanor in non refund of the amount which has been deposited under protest the petitoner is before this court by means of the present writ petiton seeking following reliefs:-

"I. issue a writ, order or direction in the nature of mandamus directing the respondent no. 2 to refund the amount of Rs. 5,80,28,025/- along with intrest @ 18% per annum from the date of deposition till date of refund.

II. issue any other writ, order or direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.

III. Award cost of the petition to the petitioner."

6. Contesting the claim of the petitioner, a counter affidavit has been filed on behalf of GNIDA sworn by respondent no. 3 on 13.06.2021 wherein following averments have been made in paragraph nos. 12, 13, 14, 15 which are quoted as under:-

"12. That the contents of para 10 of the writ petition are not admitted hence specifically denied. The petitioner has not annexed the lease deed which was executed between Greater Noida Authority and M/s Moser Bear. Without prior permission of the Greater Noida Autority M/s Moser Baer cannot sale the leae property. The M/s Moser Baer should have informed the Aurthority that they have become bankrupt and they cannot pay the lease rent of the plot allotted to them. No information has been given to the Greater Noida Authority by the M/s Moser Baer. Moreover lease rent has not been paid and the Greater Noida Authority will charge transfer charges as per policy of the Greater Noida Authority from the petitioner company, then only name of the company can be recorded in the Authority's record.

13. That the contents of para 11, 12 and 13 of the writ petition are not admitted hence specifically denied. As per the liquidation of the company of M/s Moser Baer and petitioner compoany that was between them and not with the Greater Noida Authority. In case, any amount due against the plot, the Greater Noida Authority is liable to realize it from the lesee/allottee/purchaser. The Greater Noida Authority has nothing to do with the letter dated 30.09.2020. The company has to pay the transfer charges and all the dues including lease rent of the plot. It is further stated that the dues which are pending against, the Greater Noida Authority is laible to realize from the allottee/purchaser. Moreover, the petitioner company and M/s Moser Baer have flouted the terms and condition of the lease deed.

14. That the contents of para 14 and 15 of the writ petition are not admitted hence specifically denied. The petitionr company was require to deposit lease rent and transfer charges of the polot. The Greater Noida Authority has transfer the plot in the name of the petitioner company by issuing the transfer memorandum dated 24.12.2020. 11 conditions have been given in the transfer memorandum.

15. That the contents of para 16, 17, 18, 19 and 20 of the writ petition are not admitted hence specifically denied. The M/s Moser Baer shojld have taken prior permission from the Greater Noida Authority and they should have informed that the company has becomebankrupt and they are going to insolvency. Since the petitioner company purchased the plot should have also inquire from the Authority what are the dues are pending agianst the plot. Since the petitioner compay has entered in the shoes of M/s Moser Baer, hence they have to clear all the deus. It is specifically denied that petitioner is not entitle for any refund of the amount of Rs. 5,80,33,025/-."

7. In nutshell, the stand taken by the GNIDA in their counter affidavit is that GNIDA was at no point of time apprised of the fact that Corporate Debtor lessee became bankrupt and proceedings were drawn under IBC Code- 2016 against it culminating into auction of the demised land and transfer of the same, therefore, auction in favour of the petitioner is illegal. It has been further alleged in the counter affidavit that once the petitioner stepped into the shoes of the Corporate Debtor lessee then as per the covenant contained in lease deed so executed from time to time and Transfer Memorandum the petitioner is liable to make good the arrears of the lease rentals and interest thereon.

8. Rejoiner affidavit has also been filed by the petitioner in reply to the counter affidvit so filed by the GNIDA retereating their stand in the writ petition.

9. A supplementary counter affidavit has been filed by GNIDA on 10.11.2021 sworn by respondent no. 3 annexing copy of the lease deed dated 26.06.2001 so executed between GNIDA on one part and the Corporate Debtor on the other part.

10. A supplementary rejoinder affidavit has been filed in reply of the supplementary counter affidavit. An impleadment application has been filed by the petitioner on 10.2.2022 seeking impleadment on M/s Moser Baer India Private Limited Company in Liquadation for making him as a party respondent no. 4. A supplementary affidavit and compilation of judgments have been filed by petitioner.

RELEVANT EXTRACT OF DOCUMENTS AND INSTRUMENTS EXECUTED BETWEEN THE PARTIES:-

11. THE LEASE DEED MADE on the 26th day of June in the year TWO THOUSAND ONE between Greater Noida Industrial Development Authority, a body corporate constituted under Section 3 read with Section 2(d) of the U.P. Industrial Area Development Act, 1976 (U.P. Act 6 of 1976) (hereinafter called the ''Lessor which expression shall, unless the context does not so admit, include its successor and assigns) of the one part AND

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