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Issues: (i) Whether the Interim Resolution Professional was entitled to take peaceful possession and custody of the project site notwithstanding the RERA orders and the respondent association's objection; (ii) Whether Mr. Akarsh Kashyap was required to be appointed as the Authorized Representative of the financial creditors in the class of allottees.
Issue (i): Whether the Interim Resolution Professional was entitled to take peaceful possession and custody of the project site notwithstanding the RERA orders and the respondent association's objection.
Analysis: The application was considered on the basis that the corporate insolvency resolution process had already commenced and no stay had been granted by the appellate forum against its operation. The objection that the CIRP had been obtained by fraud was not examined in the present proceedings because that challenge was already pending elsewhere. The Tribunal applied the settled principle that Section 238 of the Insolvency and Bankruptcy Code, 2016 gives overriding effect to the Code over other laws, including the Real Estate (Regulation and Development) Act, 2016. It also noted that Section 18 of the Insolvency and Bankruptcy Code, 2016 casts a duty on the resolution professional to take control and custody of the assets of the corporate debtor.
Conclusion: The Interim Resolution Professional was entitled to take possession and custody of the project site, and the respondent association was directed to hand over peaceful possession with assistance from the local administration.
Issue (ii): Whether Mr. Akarsh Kashyap was required to be appointed as the Authorized Representative of the financial creditors in the class of allottees.
Analysis: The application was supported by the statement that the majority of home buyers had voted in favour of the proposed representative. The Tribunal accepted that position and proceeded on the basis of the vote of the class of allottees.
Conclusion: Mr. Akarsh Kashyap was appointed as the Authorized Representative of the financial creditors in the class of allottees.
Final Conclusion: The applications were allowed and the reliefs sought by the Interim Resolution Professional were granted, enabling possession of the project site to be taken over and the authorized representative to be appointed for the class of allottees.
Ratio Decidendi: In insolvency proceedings, the Insolvency and Bankruptcy Code prevails over conflicting statutory arrangements, and the resolution professional is duty bound to take custody and control of the corporate debtor's assets for the CIRP.
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