1. NORTH OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY VS AMIL AGARWAL (NCLAT – DELHI) [D.O.J. – 21.10.2022]
In the instant case the Appellant (NOIDA) is aggrieved by the Order dated 02.03.2021 passed by Ld. AA – Principal Bench, New Delhi. That the Appellant and respondent entered into a Lease agreement dated 29.06.2010 vide which the premises owned by Appellant was leased to the Respondent for 90 years. The CIRP of the Respondent commenced on 08.02.2019 pursuant to which the Resolution Professional of the Respondent took control and custody of the premises leased out by the Appellant. The Appellant filed an Application under Section 18 of the IBC, 2016 before the AA seeking direction to exclude the demised premises from the pool of Assets of the Respondent. The AA vide its Order dated 02.03.2021 dismissed the Application.
The issue that arose before the Hon’ble NCLAT was that the RP can only take possession of the assets of the Corporate Debtor over which the Corporate Debtor has Ownership Rights as recorded in the balance sheet or any information utility.
That Hon’ble NCLAT relying upon the definition of “Assets” in the Income Tax Act, 1961 and in Indian Accounting Standard 26 that A Leasehold is an Intangible Asset to a Lessee that gives him or her certain rights to use “leased property”. A Leasehold appears on Corporate Balance Sheets as long-term assets, with the initial value reflecting the Leasehold’s Original Cost. As Intangible Assets, Companies amortize Leaseholds instead of depreciating them. As with other long-term Assets, the Leasehold’s book value will reflect the reduction in value from its accumulated amortization. The Hon’ble NCLAT further held that the “Leasehold Rights” is an Asset under “Intangible Assets” falling within the ambit of Section 18(f)(iv) of the IBC, 2016 and the RP is empowered under Section 18(f) of the code to take control and custody of any asset over which the Corporate Debtor has “Ownership Rights”
2. MAYOR SPORTS PRIVATE LIMITED VS. EMPHASIS ONNOVATIONS PRIVATE LIMITED (NCLAT – DELHI ) [D.O.J. – 20.10.2022]
That in the instant case the Appellant is aggrieved by the Order dated 07.04.2021 passed by the Ld. AA in which the AA has rejected the Application filed by the Appellant under Section 9 of the Code on the ground that there was a pre-existing dispute between the Corporate Debtor and Operational Creditor. The Appellant impugning the Order passed by the AA approached the Hon’ble NCLAT.
That in the present case the Appellant and Respondent entered into an agreement for supply of footwear products, however, the Appellant entered into the said agreement after its licence for supply of footwear was terminated. That the Hon’ble NCLAT held that the Appellant in its letters have admitted the fact that there are disputes between the group company under which the appellant obtained its licence for supply of footwear products due to which the Appellant is facing legal actions in the Delhi Courts. The NCLAT further held since the Respondent has already sent a legal notice to the Appellant for criminal breach of trust, cheating, misrepresentation as the Appellant entered into an agreement with the Respondent after the license of the Appellant was terminated, there exists a pre-existing dispute between the parties. The NCLAT relying upon “Mobilox Innovations Pct. Ltd. vs Kirusa Software Pvt. Ltd. and “Innovative Industries Ltd. vs ICICI Bank and Anr.” held that the AA was correct in rejecting the Section Application filed by the Appellant.
3. JOHNSON LIFTS PVT. LTD. VS. TRACKS AND TOWERS INFRATECH PVT. LTD. (NCLAT – CHENNAI )[D.O.J. – 19.10.2022]
That in the instant case the appellant is challenging the Order passed by the AA i.e. NCLT Hyderabad Bench. That the said order was passed by the AA on 21.07.2022 however the Appellant is approaching Hon’ble NCLAT vide the present appeal on 09.09.2022. That the stand taken by the Appellant was that the Appellant had applied for the certified copy of the Order of the AA and the same was available with the Appellant on 01.08.2022 and the appellant assumed that its limitation period from the said date. The Appellant further relied upon Section 421 (3) of the Companies Act which provides that every Appeal shall be filed within 45 days from the date on which the copy of the Order is made available to the person aggrieved.
That the Hon’ble NCLAT relied upon “V. Nagarajan Vs. SLS Ispat and Power Ltd. and Ors”. passed by the Apex Court in which it was held that IBC consciously omit the requirement of limitation being computed from when the Order is made available as compared to Section 421(3) of the Companies Act. The NCLAT further relied upon “Exide Industries Ltd. vs Jitender Kumar Jain” in which it was also held that limitation for filing of appeal begins when the Order is pronounced, the period of limitation shall stop running after passing of the Order. The NCLAT held that the since the limitation to file appeal expired on 05.09.2022 from the date of pronouncement the appeal is barred by limitation, hence dismissed.