ORDER

Per Bidisha Banerjee, Member (Judicial): 1. Ld. Sr. Counsels/Counsels were heard. 2. This application has been filed by Shristi Infrastructure Development Corporation Limited (SIDCL), seeking the following reliefs:- a) Exclusion from the CIRP of the Corporate Debtor the ‘Subject Property’, being divided and demarcated portion of land admeasuring 3.5 acres out of the total land admeasuring 8 acres being Premises No.CBE/2 in Street No.MAR situated within Mouza Jatragaachi in New Town within Police Station Rajarhat in the District 24 Parganas (North) comprising of Westin Hotel (‘Subject Property”) from the CIRP of the CD;

b) Set aside the invitation of expression of interest dated 28th April, 2022 issued by the RP for alleged deliberate concealment of facts;

c) Direct the RP to consider the Claim of SIDCL for INR 909 Crores as a ‘qualified claim’.

3. Brief Background: 3.1 Sarga Hotel Private Limited (“CD”) owns a five-star hotel under the name of The Westin Kolkata Rajarhat at New Town, Kolkata (“Westin Hotel”) which it claims as its sole asset and business. The applicant, SIDCL here, is the promoter/shareholder of the Corporate Debtor viz Sarga Hotel Private Limited (SHPL in short). The Hotel(Westin) is built on a divided and demarcated portion of land admeasuring 3.5 acres (out of the total land admeasuring 8 acres) owned by SIDCL (“Underlying Land”). 3.2 For purpose of its business, the Corporate Debtor entered into a registered lease deed with SIDCL on 31 March, 2007 (“the Original Lease Deed”), for leasing of the “Underlying Land” from SIDCL for a lease period of 50 years [ Annexure-A2 @ Pg-42-76 (PDF 45-79) of Application]. 3.3 In 2008, CD got 35% equity investment (of INR 135 Crores) from one Rishima SA Investments LLC (“Rishima”) and a share subscription and shareholders I.A. (IBC) No. 690/KB/2022 agreement dated 7 August 2008 (“SSHA”) was executed between Rishima, Corporate Debtor(SHPL) and SIDCL.

3.4 As a condition precedent to investment of Rishima in CD, SIDCL and Corporate Debtor entered into a Deed of Extension and Modification (“Extension and Modification Deed”) on 12 September 2008, inter alia: (a) extending the term of the lease by additional 30 years (with an option of further extension); (b) giving right to CD to mortgage the leasehold interest; (c) amending the termination clause of the Original Lease Deed to provide that the lease will be terminated by SIDCL only on account of default in payment of lease rentals by CD and for no other reason [Annexure-R2 of the Reply, Vol. 1 @Pg 41-56 (PDF 43-58)] 3.5 Like the Original Lease Deed, the Extension and Modification Deed is claimed to be a registered document.

3.6 Corporate Debtor had also availed loans from Yes Bank, and a security over all its assets (which would include the Westin Hotel and the leasehold interest over the Underlying Land) has been created in favour of Yes Bank (now assigned to JC Flowers).

4. Contention of the SIDCL: 4.1 It is the contention of the SIDCL that the Subject Property cannot be made part of CIRP of the Corporate Debtor,since the lease over the subject property is not an asset of the Corporate Debtor.

4.2 SIDCL has a right to terminate the lease/lease under Clause-3 of a framework agreement executed between Corporate Debtor and SIDCL (“Framework Agreement”), pursuant to which the lease was executed. Hence, the Sarga Hotel Private Limited(SHPL) is fully entitled to claim leasehold rights over the subject property where the Westin Hotel has been constructed by the Corporate Debtor but in terms of the Framework Agreement.

5. Gist of arguments of Ld. Sr. Counsel Mr. Ramji Srinivasan for the RP and Ld. Sr. Counsel Mr. Abhinav Vasisht appearing for the CoC: I.A. (IBC) No. 690/KB/2022 5.1 The entire case of SIDCL is based in terms of some Framework Agreement whose very existence has not been proved by SIDCL.

5.2 At the request of the RP vide an e-mail dated 07.06.2022, SIDCLhas only