SUNIL KUMAR AGRAWAL vs. NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY
Company Appeal(AT)(Ins) – 622/ND/2022
Facts:
1.Respondent entered into a lease deed dated 19.08.2011 with M/s GSS Procon Pvt. Ltd. (CD) in respect of Plot No. GH-01/C Sector – 143B Noida (Sub divided plot of plot no. GH-01 Sector – 143B) for the purpose of constructing residential flats according to the set backs and building plan approved by the lessor. The lessee was to pay the lease premium of Rs. 24,29,66,779.00 out of which 10% i.e. Rs. 2,42,96,677.90 was paid by the lessee to the lessor with a moratorium of 24 months from the date of allotment and only the interest @ 11% per annum compounded half yearly accrued during the moratorium period, was payable in equal half yearly instalment
2.Lease deed was executed for a period of 90 years and the premium was to be paid from 26.02.2014 to 27.07.2021. The application, filed under Section 7 of the Code, was admitted on 10.10.2019. Respondent put up its claim of Rs. 32,96,19,803/- assessed on 10.10.2019 to the RP on 31.12.2019. It is an admitted case of the parties that the resolution plan submitted by the consortium of home buyers association, namely, Crossroad Welfare Society was submitted by the RP to the CoC which was approved in 10th CoC meeting held on 04.12.2020 by voting share 93.43% and is pending for approval of AA.
3.Respondent submitted a letter dated 04.06.2021 to the RP highlighting its dues towards lease premium calculated from 11.10.2019 to 30.06.2021 within 15 days and since the said dues were not paid within the stipulated period, therefore, the Authority presumed that the RP has declined the same and filed the application before the Adjudicating Authority on 27.09.2021 which was allowed by the AA.
4.Appellant is challenging the order.
Issue: whether the Adjudicating Authority has rightly applied the explanation under Section 14(1)(d) of the Code for the purpose of directing the Appellant to pay the lease premium amount and the lease rent to the Respondent?
Arguments:
For Appellants:
1.Counsel submitted that Section 14(1)(d) provides that after the declaration of moratorium, the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the Corporate Debtor but the explanation appended with Section 14(d) clarifies that a license, permit, registration, quota, concession, clearance or a similar grant or right given by the Central Govt., State Govt., local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, shall not be suspended or terminated on the grounds of insolvency but it shall continue if there is no default in payment of the dues of the said license, permit, registration, quota, concession, clearance or a similar grant or right during the moratorium.
2.Counsel argued that the lease rent and the premium are conspicuous by its absence in the said explanation and cannot be read into it.
For Respondents:
1.Counsel for Respondent has vehemently argued that lease and premium shall fall within the words “similar grant or right” and thus, there is no error in the impugned order, passed by the Adjudicating Authority
Decision: Adjudicating Authority has rightly applied the explanation under Section 14(1)(d) of the Code for the purpose of directing the Appellant to pay the lease premium amount and the lease rent to the Respondent
Rationale:
1.NCLAT noted that explanation appended to Section 14(1) (d) says that with the prohibition of recovery of any property by an owner or lessor, a license, permit, registration, quota, concession, clearance or a similar grant or right either given by the Central Govt., State Govt. local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, shall not be suspended or terminated on the grounds of insolvency but there would be a condition for its continuation if there is no default in payment of the dues of such license, permit, registration, quota, concession, clearance or a similar grant or right during the moratorium period. The similar grant or right has to be read in respect of the licence, permit, registration, quota, concession, clearance but it cannot be read as the premium amount or lease rent which has been so ordered by the Adjudicating Authority to be paid by the Appellant to the Respondent.
Order:
