2021 (7) TMI 985 - AT - Insolvency and Bankruptcy

Tribunal instructs recognition of Dr. Tandon as Financial Creditor, dismisses Operational Creditor appeal

The Tribunal set aside the decision regarding the Financial Creditor status of Dr. Tandon and others, instructing the Liquidator to recognize them as ... Liquidation process - J.M. Financial Asset Reconstruction Company Ltd. has been asserting rights on the basis of being part of Committee of Creditors and Financial Creditor of the Corporate Debtor - HELD THAT:- Application by the Adjudicating Authority, the same was dismissed as infructuous and period of CIRP was extended. In 9th CoC Meeting dated 10.09.2018, as plans received were not viable CoC again decided to file for Liquidation and I.A. No. 376 of 2018 was filed by Resolution Professional on 25th September, 2018. Company Appeal (AT) (Ins.) No. 1219 of 2019 read with Company Appeal (AT) (Ins.) No. 1327 of 2019 Direction of refund of money to Dr. Tandon and others - Order/direction as may be issued by Competent Court in pending litigation - it is claimed that when the Adjudicating Authority accepted that Dr. Tandon and others were not financial Creditors and that their claim was time-barred, the Adjudicating Authority could not have directed the Resolution Professional to return the money as has been directed - HELD THAT:- It is claimed in state of Madhya Pradesh in view of Section 17(1) clause ‘f’ added Registration Act, 1908 document which purports or operates to effect any contract for sale of any immovable property is required to be compulsorily registered. Under Section 49 such document cannot be received as evidence of any transaction affecting the property. Dr. Tandon and others did not show copy of registered sale-deed to show that it was executed by authorized representative and thus they were not allottees of Real Estate Project. It is argued that Dr. Tandon and others could not be treated as Financial Creditors. The Adjudicating Authority erred in not considering such documents and it came to the wrong conclusion that Dr. Tandon and others could not be treated as Financial Creditors. As per the amended definition of Section 5(8) which added the Explanation, Dr. Tandon and others were required to be treated as allottees to Real Estate Project and to have been treated accordingly - It was also error on the part of the Adjudicating Authority to state that agreement of sale was dated 31st March, 2012 and thus the claim was time22 Company Appeal (AT) (Ins.) No. 1176, 1203, 1219 & 1327 of 2019 barred. Whether or not Corporate Debtor could have ultimately executed Sale Deed is not relevant in the facts of case read with provisions of IBC. Resolution Professional/Liquidator could not have asked Dr. Tandon & Ors. to first show No Objection of HUDCO or show document to prove that Mr. Amresh Pandya had authority without which the Resolution Professional outright refused to look into the document of Agreement to Sell which was coupled with huge amounts admittedly received in accounts of Corporate Debtor and reflected in Audited Returns - The Appellants in Company Appeal (AT) (Ins.) No. 1327 of 2019 are at liberty to request the Liquidator to act on the claim as they had filed during the period of CIRP or they may submit their fresh updated claim with the Liquidator under Regulation 18 of Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016. The Liquidator is directed to receive the same and act according to law. Company Appeal (AT) (Ins.) No. 1203 of 2019 Refund of the advance given as security deposit - no lease deed was signed between the Corporate Debtor and the Appellant No. 2 even after the expiry of the period and the Corporate Debtor failed to hand over the shop to the Appellant No. 2 - HELD THAT:- Appellant Nos. 1 and 3 claimed to have registered lease deed in their favour executed in 2011 and both of them then claimed that subsequently they executed lease deed in favour of the Corporate Debtor for the same space for which they had entered into lease deed by other documents of leave and licence executed in 2013. Appellant Nos. 1 and 3 claimed that the said documents of leave and licence were in the nature of assured returns. Their claims appear to be in the nature of claiming rent. These Appellants have tried to draw parity with the case of Dr. Tandon and others where the document was of the Agreement to Sell. These Appellants cannot seek to be treated similarly with Dr. Tandon and others - Appellant Nos. 1 and 3 cannot be considered as Financial Creditors. As regards the Appellant No. 2, it is only a claim for return of security deposit for which already litigation was raised before the District Consumer Redressal Forum - the Adjudicating Authority rightly directed these Appellants to file their claims before the Liquidator. Appeal stands disposed with direction to the Liquidator to receive the claims made by these Appellants (if not already made) and treat the same appropriately under the provisions of law. Company Appeal (AT) (Ins.) No. 1176 of 2019 Seeking direction to set aside Liquidation order - HELD THAT:- Impugned Order shows that Section 7 of IBC Application in the matter was admitted on 14.09.2017. The Liquidation Order has been passed on 20th September, 2019. Clearly much more period than what Section 12 of IBC prescribes was consumed. The prayer of the Appellant to set aside the Liquidation Order for reasons stated against the Resolution Professional/Liquidator cannot be granted as in the set of facts Liquidation is the necessary consequence if in the time prescribed under Section 12 of IBC Resolution Plan has not become possible - As regards, averments made against the Resolution Professional/Liquidator, as IBBI which is the regulatory authority for Resolution Professionals has already been ceased of the matter we need not deliberate over those issues and leave them for IBBI - the appeal cannot be allowed. Application disposed off. Issues Involved:1. Determination of Financial Creditor status of Dr. Tandon and others.2. Validity of the Agreement to Sell and its implications.3. Directions for refund of money to Dr. Tandon and others.4. Status of Appellants in Company Appeal (AT) (Ins.) No. 1203 of 2019.5. Grievances against the Resolution Professional in Company Appeal (AT) (Ins.) No. 1176 of 2019.Issue-wise Detailed Analysis:1. Determination of Financial Creditor Status of Dr. Tandon and Others:The Appeals arose from the CIRP initiated against Sandhya Prakash Ltd., with Mr. Devendra Padamchand Jain as the Resolution Professional and later the Liquidator. Dr. Tandon and others claimed to be Financial Creditors based on an Agreement to Sell (ATS) for a unit in AURA Mall, Bhopal. They sought inclusion in the CoC and execution of the sale deed. The Adjudicating Authority held that Dr. Tandon and others were not Financial Creditors, as their claim was based on an unregistered and insufficiently stamped agreement, and the execution was disputed. It was also noted that the claim was barred by limitation and pending litigation. However, the Adjudicating Authority directed the Resolution Professional to refund the amount given as advance by Dr. Tandon and others.2. Validity of the Agreement to Sell and Its Implications:J.M. Financial, a Financial Creditor, opposed the inclusion of Dr. Tandon and others as Financial Creditors, arguing that the ATS was not valid due to the mortgage of the property and lack of registration. The Adjudicating Authority found that the ATS could not be treated as evidence due to its unregistered status and insufficient stamping. It also noted that the money advanced could not be treated as financing for the building project, as the shop was already built. The claim was considered time-barred as the ATS was dated March 31, 2012, and the three-year limitation period had expired.3. Directions for Refund of Money to Dr. Tandon and Others:The Adjudicating Authority directed the Resolution Professional to refund the amount of Rs. 2.17 crores to Dr. Tandon and others, stating that it was an improper receipt of money under a disputed agreement. This direction was challenged by J.M. Financial, arguing that it bypassed Section 53 of the IBC. The Tribunal found that the Adjudicating Authority erred in directing the refund, as it was against the provisions of the IBC.4. Status of Appellants in Company Appeal (AT) (Ins.) No. 1203 of 2019:The Appellants in this appeal claimed to be Financial Creditors based on various agreements with the Corporate Debtor. The Adjudicating Authority directed them to file their claims before the Liquidator. The Tribunal found that the Appellants could not be treated as Financial Creditors, as their claims were in the nature of rent or security deposit refunds. The Liquidator was directed to receive and appropriately treat their claims under the provisions of law.5. Grievances Against the Resolution Professional in Company Appeal (AT) (Ins.) No. 1176 of 2019:The Appellant, an Operational Creditor, raised various grievances against the Resolution Professional, alleging improper conduct of the CIRP. The Tribunal noted that the Liquidation Order was a necessary consequence due to the expiration of the prescribed period under Section 12 of the IBC. The Tribunal declined to set aside the Liquidation Order and left the grievances against the Resolution Professional to be addressed by the IBBI, the regulatory authority.Conclusion:The Tribunal quashed and set aside the Impugned Order regarding the Financial Creditor status of Dr. Tandon and others, directing the Liquidator to treat them as Financial Creditors. The appeals by the other Appellants were disposed of with directions to the Liquidator to appropriately treat their claims. The appeal by the Operational Creditor was dismissed, with no order as to costs.