# Palika Towns LLP, Lucknow v. State of U.P. & Ors

- **Citation:** (2022) 7 ILRA 370
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-01-16
- **Case number:** Writ-C No. 10123 of 2021
- **Bench:** Surya Prakash Kesarwani, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/palika-towns-llp-lucknow-v-state-of-u-p-ors-48892
- **Pages:** 48

## Headnote

Law
-
Insolvency
and
Bankruptcy Code 2016 - Sections 7 &
33(2) - Insolvency Resolution process -
After auction, the bid was accepted and
7 All. Palika Towns LLP, Lucknow Vs. State of U.P. & Ors.
371
confirmed by the NCLT - GNIDA, the
lessor, claimed the arrears of rental and
interest thereon - Liability of auction
purchaser to pay it - As per the sale
certificate, the plot, in question was sold
on 'As is where is' , 'As is what is',
'Whatever there is', and 'No recourse'
basis - Auction purchaser, the petitioner
accepted
the
condition.
He
was
a
signatory of Transfer Memorandum -
Effect - Held, the petitioner stepped into
the shoes of the Creditor Debtor and also
got itself bound to honor the contractual
obligation - He was bound to honor the
commitments as laid down in the lease
deed - Held further, the petitioner being a
beneficiary of a transfer is bound to honor
the contractual obligation as contained in
the Transfer Memorandum. [Para 19(ii),
21, 60, 66 and 67]
B. Constitution of India - Article 226 - Writ
of mandamus - Contractual obligation -
Scope of interference - Solitary relief sought
for refund of amount claimed to be
deposited under protest, how far can be
granted - Held, resiling and wriggling from
contractual obligations are not within the
realm of the writ proceedings - Writ
petition, seeking the solitary relief of
mandamus without assailing any order, is
not maintainable - Cases of Suganmal and
Salonah Tea Company Ltd. relied upon.
(Para 68, 79 and 82)
C. Transfer of Property Act, 1882 - Section
3 - Doctrine of constructive notice -
Doctrine of Caveat Emptor - Meaning and
scope - Caveat Emptor means 'let the
buyer beware' - This doctrine puts the
duty on the purchaser to carry out all
necessary inspection of the property
before entering into an agreement. If the
purchaser
fails
to
conduct
such
an
inspection, then later, on identification of
defects in the property may not be a
ground to revoke or claim damages under
the contract - High Court held the words
'As is where is' finds its root in the
common law doctrine of 'Caveat Emptor'.
(Para 31 and 32)
D. Defects in property - Latent defect and
patent defect - Meaning - Liability of
purchaser to inspect the defect, how far
exist before purchasing the property -
Difference between latent defect and
patent defect - Latent defects are such
type of defects which are unlikely to be
discovered
by
a
purchaser
during
investigation. On the other hand, the
second category is patent defects, which
are discoverable if the buyer would have
carried out inspection - High Court held
the conditions shown in sale certificate is
the defect falls under the second category
i.e patent defect. (Para 34)
E. Lease - Leasehold and freehold -
Difference - Right of lessor over the land
leased
out,
which
is
being
put
to
liquidation - Held, lessor has a paramount
interest over the property so sought to be
leased to the l

## Text

_Characters 0–39,632 of 165,625. This is a partial read: ask again with offset=39632 for what follows._

370 INDIAN LAW REPORTS ALLAHABAD SERIES
upper caste or not is required to be decided
on the basis of other relevant evidence.

14. It is apparent from the perusal of
the judgment rendered in the case of
Mairaj Ahmed (Supra) that Division
Bench had not noticed the earlier Division
Bench judgments rendered in the case of
Nasrin Bano (Supra). Without noticing
binding precedents of this Court or relevant
Government Orders, the Division Bench
had passed the order dated 16.01.2019
placing reliance only upon the question of
fact relating to the ancestors of the
petitioner prefixing their names with the
word "Sheikh", cannot be said to be upper
caste as per judgment rendered in the case
of Rasheed Ahmad (Supra).

15. The judgment in the case of Mairaj
Ahmed (Supra) cannot said to be rendered
after considering all the relevant Government
Orders and the Scheme framed therein in
compliance of the judgment rendered by the
Supreme Court in the case of Kumari
Madhuri Patil (Supra) and the Division
Bench judgments of this Court in the cases of
Taramuni Tharu (Supra) and Tharu Shakti
Samiti (Supra).

16. This writ petition is disposed of
with a direction to the petitioner to approach
the District Level Scrutiny Committee and
place all the relevant facts with regard to the
validity of the Caste Certificate claimed by
the petitioner.

17. Since this Court is sitting in
Division Bench and has considered the
judgments rendered by earlier coordinate
Benches and finds that there is a difference in
approach of the two Division Benches in the
cases of Nasrin Bano (Supra) and Mairaj
Ahmed (Supra). The matter is referred to the
Hon'ble Chief Justice to constitute a Larger
Bench
for
considering
the
following
questions:

(i) "Whether the Government Orders
dated
05.01.1996,
27.01.2011
and
28.02.2011 have been issued in exercise of
executive
jurisdiction
by
the
State
Government after considering the directions
issued by the Supreme Court in the case of
Kumari Madhuri Patil (Supra)?"

(ii) "Whether the judgment rendered in
the case of Mairaj Ahmed (Supra) can be
considered to have laid down a valid
proposition of law that the District Level
Scrutiny Committee should not have ignored
the observations made by the Supreme Court
in the case of Kumari Madhuri Patil
(Supra) for verification of Caste Certificate
by a Vigilance Cell moved by Police Officers
?".
----------
(2022)07ILR A370
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ-C No. 10123 of 2021

Palika Towns LLP, Lucknow ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Manu Khare, Sri Navin Sinha (Senior Adv.)

Counsel for the Respondents:
C.S.C., Anjali Upadhya, Sri Ramendra Pratap
Singh

A.
Company
Law
-
Insolvency
and
Bankruptcy Code 2016 - Sections 7 &
33(2) - Insolvency Resolution process -
After auction, the bid was accepted and
7 All. Palika Towns LLP, Lucknow Vs. State of U.P. & Ors.
371
confirmed by the NCLT - GNIDA, the
lessor, claimed the arrears of rental and
interest thereon - Liability of auction
purchaser to pay it - As per the sale
certificate, the plot, in question was sold
on 'As is where is' , 'As is what is',
'Whatever there is', and 'No recourse'
basis - Auction purchaser, the petitioner
accepted
the
condition.
He
was
a
signatory of Transfer Memorandum -
Effect - Held, the petitioner stepped into
the shoes of the Creditor Debtor and also
got itself bound to honor the contractual
obligation - He was bound to honor the
commitments as laid down in the lease
deed - Held further, the petitioner being a
beneficiary of a transfer is bound to honor
the contractual obligation as contained in
the Transfer Memorandum. [Para 19(ii),
21, 60, 66 and 67]
B. Constitution of India - Article 226 - Writ
of mandamus - Contractual obligation -
Scope of interference - Solitary relief sought
for refund of amount claimed to be
deposited under protest, how far can be
granted - Held, resiling and wriggling from
contractual obligations are not within the
realm of the writ proceedings - Writ
petition, seeking the solitary relief of
mandamus without assailing any order, is
not maintainable - Cases of Suganmal and
Salonah Tea Company Ltd. relied upon.
(Para 68, 79 and 82)
C. Transfer of Property Act, 1882 - Section
3 - Doctrine of constructive notice -
Doctrine of Caveat Emptor - Meaning and
scope - Caveat Emptor means 'let the
buyer beware' - This doctrine puts the
duty on the purchaser to carry out all
necessary inspection of the property
before entering into an agreement. If the
purchaser
fails
to
conduct
such
an
inspection, then later, on identification of
defects in the property may not be a
ground to revoke or claim damages under
the contract - High Court held the words
'As is where is' finds its root in the
common law doctrine of 'Caveat Emptor'.
(Para 31 and 32)
D. Defects in property - Latent defect and
patent defect - Meaning - Liability of
purchaser to inspect the defect, how far
exist before purchasing the property -
Difference between latent defect and
patent defect - Latent defects are such
type of defects which are unlikely to be
discovered
by
a
purchaser
during
investigation. On the other hand, the
second category is patent defects, which
are discoverable if the buyer would have
carried out inspection - High Court held
the conditions shown in sale certificate is
the defect falls under the second category
i.e patent defect. (Para 34)
E. Lease - Leasehold and freehold -
Difference - Right of lessor over the land
leased
out,
which
is
being
put
to
liquidation - Held, lessor has a paramount
interest over the property so sought to be
leased to the lessee as there is a marked
difference between leasehold and freehold
as in the case of former only possession is
transferred and not the ownership or title,
however, in the later ownership and
possession stands transferred. (Para 40
and 43)
Writ petition dismissed. (E-1)
List of Cases cited :-
1. Al Champdandy Industries Ltd. Vs Official
Liquidator & anr.; (2009) 4 SCC 486
2. Rana Girders Ltd. Vs U.O.I. & ors.; (2013) 10
SCC 746
3. Haryana State Electricity Board Vs Hanuman
Rice Mills Dhanauri & ors.; (2010) 9 SCC 145
4. St. of Karn. & anr. Vs Shreyas Papers (P) Ltd.
& ors.; (2006) 1 SCC 615
5. Telangana State Southern Power Distribution
Comp. Ltd. & anr. Vs Srigdhaa Beverages;
(2020) 6 SCC 404
6. Raman Roadways Pvt. Ltd. Vs St. of Mah. &
ors.; 2021 SCC Online Bom 534
7. Sales Tax Officer, Banaras & ors. Vs Kanhaiya
Lal Makund Lal Saraf; AIR 1959 SC 135
372 INDIAN LAW REPORTS ALLAHABAD SERIES
8. U.T. Chandigarh Administration & anr. Vs
Amarjeet Singh & ors.; 2009 (4) SCC 660
9. Punjab Urban Planning & Development
Authority & ors. Vs Raghu Nath Gupta & ors.;
2012 (8) SCC 197
10. Rajasthan State Industrial Development &
Investment Corp. & anr. Vs Diamond & Gem
Development Corp. Ltd. & anr.; 2013 (5) SCC
470
11. U.O.I. Vs Official Liquidator & ors.; 1994 (1)
SCC 575
12. Phatu Rochiram Mulchandani Vs Karnataka
Industrial Area; 2015 (5) SCC 244
13. Stressed Assets Stabilization Fund Vs West
Bengal Small Industries Development Corp.;
2019 (10) SCC 148
14. St. of U.P. Vs U.O.I.; 2016 (2) SCC 757
15. Delhi Development Authority Vs Karam
Department of Finance Investment (India) Pvt.
Ltd. & ors.; 2020 (4) SCC 136
16. K. Madhu & ors. Vs Dugar Finance India Ltd.
& ors.; (2008) 145 Comp Case 277 (Mad)
17. R.N. Gosain Vs Yashpal Dhir; (1992) 4 SCC
683
18. Shyam Telelink Ltd. Vs U.O.I.; (2010) 10
SCC 165
19. Cauvery Coffee Traders, Mangalore Vs
Hornor
Resources
(International)
Company
Limited; (2011) 10 SCC 420
20. Sri Gangai Vinayagar Temple & anr. Vs
Meenakshi Ammal & ors.; (2015) 3 SCC 624
21. R. K. Mittal & ors. Vs St. of U.P. & ors.; 2012
(2) SCC 232
22. Har Shankar & ors. Vs The Dy. Excise and
Taxation Commercial & ors.; 1975 (1) SCC
737
23. M/s Radhakrishna Agarwal & ors. Vs St. of
Bihar & ors.; 1977 (3) SCC 457
24. Premji Bhai Parmar & ors. Vs Delhi
Development Authority & ors.; 1980 (2) SCC
129
25. Divisional Forest Officer Vs Bishwanath Tea
Co. Ltd.; 1981 (3) SCC 238
26. Barielly Development Authority & anr. Vs
Ajay Pal Singh & ors.; 1989 (2) SCC 116
27. Noida Entrepreneur Assc. Vs U.P. Financial
Corporation & anr.; 1994 Supp (2) SCC 108
28. Improvement Trust Ropar Through Its
Chairman Vs Tejinder Singh Gujral & ors.; 1995
Supp (4) SCC 577
29. State of Orissa Vs Narain Prasad & ors.; AIR
1997 S.C. 1493
30. Orissa State Financial Corporation Vs
Narsingh Ch. Nayak & ors.; 2003 (10) SCC 261
31. Suganmal Vs St. of M.P.; AIR 1965 SC 1740
32. Salonah Tea Comp. Ltd. & ors. Vs
Superintendent of Taxes Nowgong & ors.; 1988
(1) SCC 401
(Delivered by 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
7 All. Palika Towns LLP, Lucknow Vs. State of U.P. & Ors.
373
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
374 INDIAN LAW REPORTS ALLAHABAD SERIES
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
7 All. Palika Towns LLP, Lucknow Vs. State of U.P. & Ors.
375
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

1.Sri...............................aged................
.Years..........................

S/o.........................................................
R/o..........................

2.
Sri...............................aged.................Years.
.........................

S/o.........................................................
R/o..........................
376 INDIAN LAW REPORTS ALLAHABAD SERIES

3.Sri...............................aged................
.Years..........................

S/o.........................................................
R/o..........................

4.Sri...............................aged................
.Years..........................

S/o.........................................................
R/o..........................

5.Sri...............................aged................
.Years..........................

S/o.........................................................
R/o..........................

hereinafter called the lessee which
expression shall unless the context does not
admit,
include
his/her/their/it's
heirs,
executors, administrators, representatives
and permitted assigns/it's successors and
permitted assigns of the other part.

A. Partnership Firm /Proprietorship
Firm/Company functioning in the name of
M/s. Moser Baer Indi Ltd.- Having its
Registered Office Situated at 63, Ring
Rutid. Through its Director Sri N.K.
Chaudhary aged.48 years S/O Sri Raj
Mangal Chaudhary I-11 Sector 27 Noida he
reinafter called the lessee which expression
shall, unless the context does not admit,
include his/he:/their/it's heirs, executors,
administrators,
representatives
and
permitted
assigns/it's
successors
and
permitted assigns) of the other part.

II (a).........

Provided that the interest shall be
computed at the rate mentioned above on
the
total
amount
of
the
balance
outstanding from time to time from the
date of allotment and shall be payable
half yearly (As per payment plan
enclosed with allotment latter) on the
schedule mentioned above. Provided that
if the installments together with the
interest accruing thereon are not paid by
tor on the due date. Interest at the rate of
15% compounded at six monthly shall be
charged for delayed payment for delayed
period.

(b) The payments made by the
Lessee shall be first adjusted towards the
interest due. If any, and thereafter
towards the premium. If any, and the
balance. If any, shall be appropriated
towards the lease rent not withstanding
any directions/request of the lessee to the
countrary.

(c) If Lessee makes default in
payment of premium and interest for two
consecutive installments the Lessor shall
have a right to determine the Lease and to
resume possession.

(9) (i) That the lessee, may transfer,
relinquish, mortgage or assign its interest
in the demised premises or the building
constructed thereon or both provided that
no transfer shall be allowed/permitted in
respect of a unit where a functional
certificate has not been obtained.

Provided also that the lessee may
with the previous permission in writing of
the lessor (whose decision shall be
binding
on
the
lessee
and
which
permission shall not be unreasonably
withheld) relinquish mortgage or assign
its interest in the demised premises or the
building constructed thereon or both.

(ii)
Every
transfer,
assignment,
relinquishment, mortgage or subletting as
referred to above shall be subject to and
the beneficiary thereof shall be bound by
all
the
covenants
and
conditions
contained in this deed and be answerable
to the lessor in all respect in the same
manner as the original lessee.

10 (a) Whenever the title of the Lessee
in the demised premises is transferred in
any manner whatsoever the transferor and
7 All. Palika Towns LLP, Lucknow Vs. State of U.P. & Ors.
377
the transferee shall within one month of
such transfer, give notice of such transfer in
writing to the Lessor.

(b) In the event of the death of the
Lessee the person on whom the titles of the
deceased devolves shall within three
months of such devolution give notice of
such devolution to the Lessor.
(c) The transferee or the person on whom
the titles devolves as the case may be shall
supply to the Lessor certified copies or the
document evidencing the transfer or
devolution.

15..........

The Lessor may require the successor
in interest of the Lessee to abide by and
faithful carry out the terms, conditions,
stipulations provisions and agreements
herein contained.

IV. AND IT IS HEREBY FURTHER
AGREED AND DECLARED BY AND
BETWEEN THE PARTIES TO THESE
PRESENTS AS FOLLOWS

(A) Upon the happening of any one or
more
of
the
under
mentioned
contingencies.

(a) If the lessee or any other person(s)
claiming through or under such lessee
commits breach of any of the covenants or
conditions contained in this Deed and such
breach is not remedied following receipt of
a written notice from the lessor specifying
the nature of breach and providing the
lessee reasonable opportunity to remedy the
breach:

(b) If the lessee or any other person(s)
claiming through or under such lessee fails
and/or neglects to observe punctuality
and/or perform any of their/its/his/her
obligations stipulated under this Deed:

(c) If the lessee or any other person(s)
claiming through or under such lessee
whether actually or purportedly transfers,
creates,
alienates,
extinguishes,
relinquishes, mortgages or assigns the
whole or any part of his right, title or
interest whether in whole or any part
thereof, except in the manner stipulated in
this Lease Deed.

(3) (a) That the Lessor and the Lessee
hereby agree that all sums due under this
deed from the Lessee on account of
premium rent, interest or damages for use
and occupation or any other account
whatsoever shall on the certificate of the
Lessor which shall be final, conclusive and
binding on the Lessee be recoverable as
arrears of land revenue.

(b) That the lessor shall have first
charge upon the demised premises for the
amount of unpaid lease rent and interest
thereon and other dues of Authority.

SALE
CERTIFICATE
DATED
30.07.2021

AND
WHEREAS
the
official
Liquidator within his ambit and powers
conferred
under
Insolvency
and
Bankruptcy Board of India (Liquidation
Process) Regulations, 2016, In view of
NCLT's order dated 16-07-2019, has sold
the leasehold rights of plot no 66
admeasuring
270201.16
sqm,
Greater
Noida, Distt Gautam Budh Nagar, UP along
with buildings constructed (Map Enclosed)
thereupon
(hereinafter
referred
to
as
"PROPERTY") as per terms contained in eauction process document dated 08-032019.and as per order of Honble NCLT
order dated 16-07-2019. The Liquidator
issued the sale certificate dated 11-09-2019
in respect of the captioned property which
is an integral part of this document and is
also attached herewith. Consequently, the
Transferor has transferred the fease hold
rights for the said Property unto) the
378 INDIAN LAW REPORTS ALLAHABAD SERIES
TRANSFEREE by virtue of the aforesaid
sale certificate and the TRANSFEREE has
also agreed to acquire the same for the sale
consideration
of
Rs.
1,45,75,00,000/-
(Rupees One Hundred Forty Five Crores
and Seventy Five Lakh Only).

AND WHEREAS the Transferor has
already
applied
and
obtained
the
TRANSFER MEMORANDUM from the
Greater Noida Industrial Development
Authority,
vide
TRANSFER
MEMORANDUM
No.
GNIDA/2020/1750dated
24-12-2020
in
favour of the Transferee, in respect of the
lease hold rights for the said property l.e.
Plot No. 66, Greater Noida, U.P. having
total area admeasuring 2,70,201 Sq. Mtrs.

4. That the Transferor has assured and
undertakes the Transferee that the said
property
is
free
from
all
sorts
of
encumbrances such as mortgage, sale, gift,
lien,
agreement,
dispute,
tigation
injunctions,
banks
or
private
loans,
securities, guarantees, attachment with any
decree of any Hon'ble court of law from
lower to higher jurisdiction in the all over
India or abroad being sale as per the
provisions of the IBC Codeand NCLT
Orders.
7. That the Transferee shall be bound by the
terms and conditions of the earlier Lease
Deeds executed between the Transferor and
the Greater Noida specifically the original
lease deeds in respect of the said property
and the supplementary lease deed dated
28th November 2007 subject to the changes
mentioned in the transfer memorandum and
otherwise from time to time.

11. That if the Transferee does not abide by
the terms and conditions of allotment/leases
and building regulation and direction or
any other rules framedby the authority, the
lease may be cancelled by the GNIDA and
possession of the demised premises may be
taken over by the GNIDA and the
Transfereein such an event will not be
entitled to claim any compensation in
respect thereof.

ग्रेटर नोएडा औद्योदगि दििास प्रादधिरण

िूिण्ड सांख्या-01, सैक्टर-िे० पी०-4, ग्रेटर नोएडा दसटी,

दिला गौतमबुद्ध नगर

पत्राांिः ग्रेनो/उद्योग/हस्ताांतरण पत्र/2020/1760 दिनाांि
24/12/2020

अन्तरण ज्ञापन

Transfer Memorandum.

आिांटन Ind
िूिण्ड सांख्या 66
क्षेत्रफल 270201 िगिमीटर
ब्लाि- Udyog Vihar
िास्तदिि क्षेत्रफल- 270201
िगिमीटर
सैक्टर-Ecotech-II,
अांतरि िे पक्ष में M/s.
Moser Baer India Ltd
अांतररिी िे पक्ष में M/s.
Palika Towns LLP
authorised- Anil Kohli
दपता/पदत िा नाम- Ramesh
Chandra Kohli अांतरि िा
पता
K.
G.
Marg
Cannaught place New
Delhi
authorised -Ashish
Jain दपता / पदत िा नाम
Dileep Kumar Jain
अांतररिी िा पता A-3 SF
House
No
66
Bihari
Nagar
Ghaziabad

उपरोक्त अांतरण हस्ताांतरण प्रपन्न दिनाांि 18.12.2020
िे क्रम में दिशेष िायािदधिारी महोिय िे अनुमोिन िे उपराांत
दनम्नदलदित दनयम ि शतों िे साि अनुमोदित दिया िाता है

1. अांतरि / अांतररिी िो यह सुदनदित िरना होगा दि
उपरोक्त सम्पदत्त सिी प्रिार िे िार से मुक्त है तिा िही बन्धि नहीं
है । बन्धि पाये िाने िी िशा में अांतरण अनुमदत स्ितः दनरस्त
मानी िायेगी

2. अांतररिी द्वारा इस पत्र िे िारी होने िी दतदि से 90
दिन िे अन्िर दनबदन्धत अांतरण प्रलेि िा दनबन्धन सम्बदन्धत
उपदनबन्धि िायािलय सेक्टर गामा दचतिन एस्टेट) ग्रेटर नोएडा
7 All. Palika Towns LLP, Lucknow Vs. State of U.P. & Ors.
379
दसटी में सुदनदित दिया िाना चादहए दिसिी प्रदत ग्रेटर नोएडा
िायािलय में िेनी होगी। अांतरण प्रलेि न िराने दि दस्िदत में ितिमान
औद्योदगि नीदत िे अनुसार िायिाही िी िायेगी।

3. अांतरण ज्ञापन अांतरण प्रलेि िा अदनिायि अांग होगा
तिा अांतरण िे साि पररदशष्ट िे रूप में दनबदन्धत दिया िायेगा।

4. अांतरि एिां ग्रेटर नोएडा िे मध्य दनष्पादित पटटा प्रलेि
दिनाांि 28-08-2001 एिां अनुपूरि पटय प्रलेि दिनाांि शून्य में
िदणित शतें एिां दनयम एिां अांतरण ज्ञापन िी शत अांतररिी पर
बाध्यिारी होगीं।

5अांतररिी उपरोक्त औद्योदगि ििन िा उपयोग दिनाांि
28-08-2001 से िेिल 90 िषि िी अिदध िे शेष िाग िे
दलये पटटे िे रूप में िरेगा। 5.

6. प्रादधिरण िे अनुमोदित ििन दनयमािली िे दनयम
दनिेशों उपबन्धी िे दिरुद्ध दिये गये दनमािण िायि िे फलस्िरूप
समस्त िदयत्ि स्ितः ही अांतररिी में दनदहत समझे िायेंगे।

7. िूिण्ड हस्तान्तरण िे बाि िी िोई िेयता (िैसे प्रीदमयम
/ लीि/ अदतररक्त प्रदतिर आदि िी गणना सम्परीक्षा िे अधीन है)
बनती है तो अांतररिी िो व्याि सदहत िेना होगा तिा अांतररिी िो
िदिष्य में िेय पट्टा दिराये िा िुगतान दनधािररत दतदि िो िरना
होगा।

8. टी०एम० िारी होने िी दतदि से इिाई िो एि िषि िी
अिदध में पुनः इिाई दक्रयाशील घोदषत दिया िाना अदनिायि होगा।
उपरोक्त अिदध िे पिात प्रादधिरण िे दनयमानुसार दिलम्ब शुल्ि
िे साि समय दिस्तरण अनुमन्य होगा।

9. इिाई द्वारा उक्त िूिण्ड िा एिमुश्त लीिरेन्ट िमा िरा
दिया गया है। यदि प्रादधिरण द्वारा िदिष्य में लीि रेन्ट िी िरों में
िोई पररितिन दिया िाता है तो अांतररिी बढी हुयी धनरादश िो
िमा िरने हेतु बाध्यिारी होगा।

10. अांतररिी द्वारा उक्त औद्योदगि िूिण्ड िा उपयोग
औद्योदगि योिना िे अन्य प्रचदलत दनयम दनिेशों िे अनुसार न
िरने िी िशा में आिांटन दनरस्तीिरण हेतु िााँदित िायिाही िी
िायेगी तिा अांतररिी िोई अनुतोष पाने िा अदधिारी न होगा।
हस्ताांतरण इस प्रदतबांध िे साि दिया िा रहा है दि प्रादधिरण बोडि
िी स्िीिृदत िी

11. प्रत्याशा में लीिरेण्ट में िेय ब्याि िे सम्बन्ध में िो िी
दनणिय दलया िाएगा हस्तान्तारी िो मान्य होगा।

ARGUMENT OF PETITIONER

12. Sri Navin Sinha, learned Senior
Counsel assisted by Sri Manu Khare,
learned counsels for the petitioner have
made manifolds submissions namely:-

(a). The petitioner being a bonafide
auction purchaser, purchased immovable
asscets consequent to the auction/sale held
in pursuance of the orders of NCLT after
paying the bid amount cannot be fastened
with any monetory liability which was
attached with Corporare Debtor under
Liquidation.

(b). Once under the provisions of the
IBC Code- 2016 claims were invited by
Resolution Professional and GNIDA did
not get his claim registered then it is
estopped to claim the said amount as the
same is hit by the doctrine of waiver and
acquiescence.

(c). Even otherwise, the petitioner is
liable to pay lease rentals and interest
thereon
and
honour
the
contractual
obligation and commitments so set out in
the lease deed only from the date of the
issuance of acceptance letter confirming the
auction/execution
of
the
Transfer
Memorandum dated 24.12.2020 and not
from a date anterior to it.

(d). Deposit of an amount of Rs.
5,80,28,025 was under protest and thus, the
petitioner is entitled to refund of the same
and the GNIDA being the instrumentality
of the said State cannot withhold the said
amount on the pretext that though the
amount is not liable to be paid but was paid
under protest.

13. Elaborating the said submissions,
learned Senior Counsel has argued that the
status of the petitioner is of a bonafide
purchaser as the petitioner has participated
in the bid which was conducted pursuant to
the order passed by NCLT on 20.09.2018
wherey Corporate Debtor was declared as
insolvant and the petitioner under bonafide
belief that there was neither any latent or
patent defect in the immovable property,
which was to be put to auction participated
in the same and thus once the petitioners
380 INDIAN LAW REPORTS ALLAHABAD SERIES
bid had been approved and it had deposited
the entire amount, then the petitioner is not
liable to clear the arrears of the lease
rentals and the interest thereon which is
being claimed by the GNIDA. Sri Sinha,
has further invited the attention towards
correspondence of the Liquidator to the
GNIDA wherein it has been recited that
despite due publication of invitation of the
claims relatable to the dues owed to the
Corporate Debtor, GNIDA did not either
lodge or got registered its claim and thus,
according to learned Senior Counsel
GNIDA has forgone its right to claim the
said amount as once the proceedings under
the Code came to an end and the Corporate
Debtor got liquidated then the dues so
sought to be claimed by the GNIDA is not
only unjustified besides being not backed
by any of the provision of law.

14. Sri Navin Sinha, learned Senior
Counsel in order to buttress his submission
has relied to and referred to the several
judgments so as to contened that the
condition mentioned in the Certificate of Sale
dated 11.09.2019 being "AS IS WHERE IS",
"AS IS WHAT IS", "WHATEVER THERE
IS" AND "NO RECOURSE" cannot be
stretched so far as to include within its
encompass a situation that the petitioner is
liable to pay past dues of the company in
liquidation. According to the learned Senior
Counsel who appears for the petitioner
harmonious interpretation is to be given so as
to give literal meaning while personifying
that only those dues which are legal and
payable, are to be included and not those dues
and liabilities which are not to be paid or
discharged particularly when there was latent
and patent defects in the property which is
being put to auction and the liabilies so
attached to it, was at no point of time
apprised or confornted to the petitioner who
is a bonafide auction purchaser. Learned
Senior Counsel in support of the said
submission has relied upon the following
judgments:-

"1. Al Champdandy Industries Limited
vs. Official Liquidator and Another reported
in (2009) 4 SCC 486

2. Rana Girders Limited vs. Union of
India and Others reported in (2013) 10 SCC
746

3. Haryana State Electricity Board vs.
Hanuman Rice Mills Dhanauri and Others
reported in (2010) 9 SCC 145

4. State of Karnataka and Another vs.
Shreyas Papers (P) Ltd. and Others reported
in (2006) 1 SCC 615

5. Telangana State Southern Power
Distribution Company Limited and Another
vs. Srigdhaa Beverages reported in (2020) 6
SCC 404

6. Raman Roadways Private Limited vs.
State of Maharashtra and Others 2021 SCC
Online Bom 534

7. Sales Tax Officer, Banaras and Others
vs. Kanhaiya Lal Makund Lal Saraf AIR
1959 SC 135"

15. Learned Senior Counsel has further
argued that the petitioner is not shying away
from discharging the contractual obligation as
engrafted in the lease deed so executed
between the GNIDA on one part and
Corporate Debtor on other part as though the
petitioner has stepped into the shoes of the
Corporate Debtor in pursuance of the
Transfer Memorandum dated 24.12.2020 but
the conditions are to be tailored in such a
manner so as to give logical meaning as the
petitioner is bound to honour the commitment
so made either from the date of acceptance of
auction or from the date of execution of
Transfer Memorandum.

16. Sri Sinha has invited the attention
of the Court towards paragraph no. 14 of
7 All. Palika Towns LLP, Lucknow Vs. State of U.P. & Ors.
381
the writ petition so as to further contend
that not only specific averments about
deposit of past lease rentals along with
interests under protest were made but the
letter dated 27.10.2020 was also annexed
giving details of the paymens made by it
under protest. According to learned Senior
Counsel even if assuming that the amount
in question has been deposited voluntarily
then to GNIDA being the instrumentality of
the State, had no occassion or justification
to retain the said amont on the guise that
the petitioner has deposited the said amount
for executation of Transfer Memorandum.
The argument of the learned Senior
Counsel is that once the amount is not
liable to be paid and the GNIDA has
received the same without any legal
justification then in that contingency the
amount is liable to paid back to the person
who had extended the same.

ARGUMENT OF RESPONDENTS
(ANSWERERS)

17. Sri Ramendra Pratap Singh, who
appears for GNIDA has countered the
submission of learned Senior Counsel
while arguing that the petitioner is not
entitled to any relief particularly in view of
the fact that, might be the petitioner claims
itself to be a bonafide auction purchaser but
in view of the fact that the present case
relates to auction of an immovable property
being a lease land of which the GNIDA is
the lessor then without there being any
communication about the bankruptcy of the
Creditor
Debtor
and
the
fact
that
insolvency
proceeding
got
initiated
culminating into passing of an order of
20.09.2018, the GNIDA is not only
necessary party but also has substantial
interest therein as according to the term and
covenant contained in the lease deed not
only the lease rentals has to be paid but also
in case of subletting or assigning of the
lease in favor of the third person
concurrence and approval of GNIDA is/was
necessary. Sri Singh in order to buttress his
contention has sought to argue that the
petitioner being auction purchaser and
claiming interest over the lease land
premises is liable to make the payment of
the past lease rentals and interest of late
payment and also honour the commitments
so engrafted in the lease deed and Transfer
Memorandum
and
petitioner
cannot
wriggle out from the contractual obligation
and the dues so attached with the lease
deed as the petitioner herein has stepped
into the shoes of Corporate Debtor. It has
been
further
argued
that
contractual
obligation cannot be a subject matter of
adjudication in the present proceedings
particularly when the present petition is
being sought to be filed for getting a
judicial seal in resiling and wriggling from
contractual obligation.