2021 (8) TMI 102 - Tri - Insolvency and Bankruptcy

Tribunal sides with homebuyer in Insolvency Code case, upholding protection for timely claims

Gulshan Sethi and Ors. Versus Anand Sonbhadra, RP of Subhkamana Buildtech Private Limited

The Tribunal ruled in favor of the applicant in an application under section 60(5) of the Insolvency and Bankruptcy Code, 2016. Despite the Resolution ... Seeking to order direction to Resolution Professional to admit the entire claim filed by the applicant/financial creditor - section 60(5) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It is observed that on 27.10.2019 the resolution plan was approved by the CoC with 87.57% voting share and the applicant has filed Form of the claim on 26.02.2019, which is much prior to the approval of the plan by the CoC. The clause 8.6(3) of resolution plan covering the issue raised by present applicant and also statements made by Ld. RP Mr. Sonbhadra alongwith Ld. counsel for RP assuring allottees interest in terms of clause of resolution plan, the present application stands satisfied and is disposed of. Issues involved:- Application under section 60(5) of the Insolvency and Bankruptcy Code, 2016 seeking directions against the Resolution Professional for admitting a claim.- Dispute regarding the claim filed by the applicant as a financial creditor against a Corporate Debtor.- Allegations of failure to deliver possession of flats, re-selling apartments, and lodging FIRs against the Corporate Debtor.- Delay in verifying and admitting the claim by the Resolution Professional.- Interpretation of the Settlement Agreement and disqualification of directors.- Dispute over the nature of the claim and entitlement as a financial creditor.- Approval of the resolution plan by the Committee of Creditors (CoC) and its implications on pending claims.Analysis:The applicant filed an application under section 60(5) of the Insolvency and Bankruptcy Code, 2016 seeking directions against the Resolution Professional to admit their claim as a financial creditor. The applicant alleged that the Corporate Debtor failed to deliver possession of flats as promised, leading to FIRs being lodged against them. The applicant submitted a claim for a substantial amount, including details of dishonored cheques and properties involved. Despite reminders, the Resolution Professional delayed verifying the claim, causing the applicant to miss participating in the CoC meetings.The Resolution Professional contended that the applicant was a speculative investor and the claims were not part of the Company assets. They also questioned the legal sanctity of the Settlement Agreement due to director disqualifications. The Resolution Professional asserted that the applicant received commissions, indicating an operational debt rather than financial creditor status.In response, the applicant argued that they were genuine homebuyers seeking possession of flats, not speculative investors. They disputed the disqualification of directors and provided additional details to substantiate their claim. The applicant denied receiving commissions and clarified the purpose of payments made by the Corporate Debtor.After hearing submissions and reviewing documents, the Tribunal found merit in the applicant's contentions. The resolution plan had been approved by the CoC, but the applicant had filed their claim well before the plan's approval. The Tribunal referred to a clause in the resolution plan that addressed claims of homebuyers, providing protection to those who had not filed claims timely. Consequently, the Tribunal disposed of the application in favor of the applicant based on the resolution plan's provisions and assurances from the Resolution Professional regarding the treatment of such claims.