TaxTMI 
TaxTMI 
2021 (3) TMI 169
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....ate for FC Mr. Ram Sharma, Advocate for IIFL. JUDGMENT BANSI LAL BHAT, J. "To stay experimentation in things economic is a grave responsibility and denial of the right to experiment is fraught with serious consequences to the Nation". Remarked the Hon'ble Apex Court in "Swiss Ribbons Private Limited and Anr. vs. Union of India and Ors. (2019) SCC OnLine SC 73" while dealing with the constitutionality of the Insolvency and Bankruptcy Code, 2016, which was reiterated in "Committee of Creditors of Essar Steel India Limited vs. Satish Kumar Gupta and Ors. - (2019) SCC OnLine SC 1478". Taking a cue therefrom this Appellate Tribunal in "Flat Buyers Association Winter Hills 77, Gurgaon vs. Umang Realtech Private Limited through IRP & Ors. - Company Appeal (AT) (Insolvency) No. 926 of 2019" decided on 4th February, 2019 embarked upon an experiment to introduce the concept of "Reverse Corporate Insolvency Resolution Process", which envisaged resolution in real estate sector (Infrastructure Companies) involving allottees/ home buyers as stake holders by looking beyond the dotted line of approval of third party Resolution Plan and devising ways and means of Insolvency Resolution invo....
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....r) not as Promoter to ensure that the project is completed within the time frame as given by him. The disbursement of amount which has been made by 'Rajesh Goyal.' and the amount as will be generated from dues of the Allottees (Financial Creditors) during the Corporate Insolvency Resolution should be deposited in the account of the Company (Corporate Debtor) to keep the Company a going concern. The amount can be utilized only by issuance of cheque signed by the authorized person of the Company (Corporate Debtor) with counter signature by the Interim Resolution Professional. The Bank in which the Corporate Debtor (Company) has account the amount should be deposited only for the purpose of completion of the Project. Banks will allow the cheques for encashment only with the counter signature of the Interim Resolution Professional. ii. The flats/apartments should be completed in all aspect by 30th June, 2020. All internal fit outs for electricity, water connection should be completed by 30th July, 2020. The allottees are directed to deposit their balance amount and pay 90% without penal interest, if not deposited, by 15th March, 2020. The Allottees in whose favour possession h....
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....d Ms. Sweta Gupta (Allottees - Financial Creditors). vii. However, if the 'Promoter' fails to comply with the undertaking and fails to invest as financial creditor or do not cooperate with the Interim Resolution Professional/Resolution Professional, the Adjudicating Authority (National Company Law Tribunal) will complete the Insolvency Resolution Process. The appeal stands disposed of with aforesaid observations and directions." 3. It is manifestly clear that in the event of Promoter failing to comply with the undertaking and making investment as Financial Creditor or not extending cooperation to the IRP/RP, the resolution process would be completed by the Adjudicating Authority. 4. I.A. No.2166 of 2020 has been filed by Shri Rajesh Goyal seeking extension of timelines laid down in the judgment dated 5th of February, 2020 rendered by this Appellate Tribunal in Company Appeal (AT) (Insolvency) No.1056 of 2019 (hereinafter referred as 'the Appeal') purportedly in light of the change in circumstances caused by outbreak of COVID-19 pandemic and lockdowns imposed in various parts of the Country after the aforesaid judgment. It is submitted that due to imposition ....
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.... note suggested that the Applicant may be given five-six months to complete and handover Towers-A, B, C & F to the respective allottees, while for the remaining Towers, the Applicant's may be deferred till he proves his bonafide in delivering Towers-A, B, C & F within the extended timelines. It was suggested that the Applicant be directed to expedite selling of Flats and bring money from properties of sister concerns. It was further suggested that the allottees and their bankers be directed to pay 90% of the total consideration calculated as per BBA as regards receivables from allottees of Greater Noida Project and the additional area. As regards receivables from projects situated in Delhi, it suggested that Shri Rajesh Goyal be directed to provide and utilize money in addition to Rs. 5.06 crores already invested by him for construction purpose. It was suggested that IIFL Home Finance Limited may be directed to release the fund immediately. It was further suggested that M/s AGS Developers Private Limited, M/s GBS Marketing Private Limited and M/s Neel Builders Private Limited may be directed to release the funds immediately as per their LOI's. It was lastly suggested that Indiabull....
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....hin a period of 30 days and the extension should be considered thereafter. It is stated that under the garb of extension of time the Applicant wants the allottees to cough up Rs. 92.65 crores to be paid by the allottees seeking possession of the flats. It is further stated that the IRP should lay down the procedure to be followed by the objectors to start process of surrendering of their allotted flats. 13. Indiabulls Commercial Credit Private Limited, in its brief note (filed vide Diary No.22398 dt. 29.9.2020) indicated that the Applicant failed to comply with the directions as contained in judgment dated 5th of February, 2020. This has been projected in a tabular form, which is reproduced hereinbelow: - "Sno. Particulars Timeline as per order dated 5.2.2020 Complied/ Not Complied 1. Rs. 13.88 Crs, to be invested in the Corporate Debtor within 30 days i.e. by 5.3.2020 Not Complied 2. Rs. 25.94 Crs, to be invested in the Corporate Debtor within 60 days by 5.4.2020 Not Complied 3. Rs. 30.15 Crs, to be invested in the Corporate Debtor within 90 days by 5.5.2020 Not Complied 4. Construction of flats/ apartments to be completed ....
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.... Timelines as per order dated 05.02.2020 Revised timelines (exclusion upto 15.01.2021) Proposed extended timelines (90 days) 1 Flat should be completed in all aspects (Page 62 paragraph 20(ii)) 30.06.2020 15.06.2021 15.09.2021 2 All internal fit-outs for electricity, water connection (Page 62 paragraph 20 (ii)) 30.07.2020 15.07.2021 15.10.2021 3 Common area such as Swimming Pool, Club house etc. as per agreement (Page 62 paragraph 20 (iii)) 30.08.2020 15.08.2021 15.11.2021 4 Refund of 30% of the Principal amount to the Allottees (Page 62, paragraph 20 (iv)) 22.05.2020 15.04.2021 15.07.2021 5 Refund of 70% of the Principal amount to the allottees (Page 62, paragraph 20 (iv)) 30.08.2020 15.08.2021 15.11.2021 6 Interest to be paid to the allottees seeking refund (Page 62, paragraph 20 (iv)) 30.08.2020 15.08.2021 15.11.2021 7 Payment to Financial Institutions/ Bank and operational Creditors (Page 62, paragraph 20 (iv)) 30.08.2020 15.08.2021 15.11.2021 As per the said order, the allottees were directed to deposit balance amount and pay 90% by 15.03.2020, the same may b....