TaxTMI 
TaxTMI 
2021 (11) TMI 1057
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....lution Professional Mr. Bhim Sain Goyal was appointed. The Appellant had filed the Application IA No. 1115 of 2020 for modification of the order dated 26th February 2020. 2. The sequence of events clarifying the development during the Appeal is given in the form of a chart, which is as under: 17th December 2019 CA/AT/1507 of 2019 filed against the order of the Adjudicating Authority dated 22nd November 2019 The learned Adjudicating Authority has admitted the petition filed under Section 7 of the code by the impugned order. 19th December 2019 The interim stay order was passed by this Appellate Tribunal restraining the Constitution of Committee of Creditors. 31st January 2020 Based on the submissions of the Appellant that he will be filing settlement terms/plan disclosing all material particulars with regard to the completion of the Project, sources from which the Appellant will be arranging funds for completion of the Project and the time frame within which the possession can be given to the allottees, this Appellate Tribunal provided 15 days with further orders to resume CIRP, if no settlement is filed in 15 days. 17th February 2020....
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.... Appellant has stated that it had filed the settlement terms/plan detailing the Plan disclosing all materials particulars with regard to completion of the housing project, so if the Appellant is allowed to work upon his detailed proposal, then all the allottees will get the house. Therefore, in such circumstances, Appellant has settled the matter with Respondent No. 2 and has filed a Settlement Terms/Plan in regard to the completion of the Project. 4. It is further added that if the IRP is allowed to go ahead with the constitution of the Committee of Creditors and carry on the CIRP, then the Appellant, despite having settled the matter with respondent No. 2 and having a plan for completion of the Project, will have to hand over the management of the Project. At present, the Applicant/Appellant has completed about 70-75% of the infrastructure project. He has arranged the funds/private financer to complete the Project as per the Appellant's proposed Settlement Term/Plan on 13th February 2020. 5. Given the above, Appellant requested to modify the order dated 26th February 2020 in the light of the order dated 05th March 2020 passed by the Hon'ble Supreme Court in CA No. 1928/....
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....29990 24292 5698 10 8 2 T 10 29990 24211 5779 10 8 2 T 11 29990 20622 9368 10 7 3 T 12 29990 24125 5865 10 8 2 Total 992028 934618 57410 470 452 18 Tower-wise cost to be incurred and receivable from sold/unsold area is as under: Tower No. No. of Flats Total Sold Flats Balance amount receivable from sold Flats Receivable From Unsold Flats Total receivable Construction cost to be incurred T 1 56 56 8.03 0.00 8.03 2.679 T 2 56 56 9.14 0.00 9.14 2.606 T 3 56 56 11.71 0.00 11.71 3.383 T 4 56 56 11.70 0.00 11.70 3.826 T 5 54 52 16.96 4.58 21.53 4.615 T 6 56 56 10.82 0.00 10.82 3.911 T 7 56 52 12.46 6.94 19.40 4.454 T 8 40 37 15.67 5.37 21.03 2.325 T 9 10 8 6.16 3.13 9.29 1.452 T 10 10 8 4.72 3.18 7.90 1.452 T 11 10 7 6.50 5.15 11.65 1.450 T 12 10 8 4.36 3.23 7.59 1.450 Common Area cost to be incurred 19.1518 Commercial 6.30 6.30 EWS 1.05 1.05 Total 470 452 118.222 38.926 157.148 52.726 (vi) Proposed Plan The ....
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....shall only be paid if there is delay as per the resolution plan implementation as per the Hon'ble Tribunal direction/order. Utilization of customer funds Proposed mechanism The developer shall utilize the funds in the completion of Tower T1-T12 as per the tabular representation above in the following manner: (i) 70% of total collection shall be used for construction till Application of OC. (ii) 30% of total collection shall be used for payment of EMI, Salary and other project related expenses. The proposed mechanism of utilization of funds received from customers is enclosed as Annexure BB Repayment of New Fund Payment of interest of fresh loan shall be made from 30% collection. Repayment of Edelweiss Repayment of Loan to Edelweiss shall be made from the surplus of T1 -T12 and after commencement of construction of Phase-2. Customer commitment Customer commitments * EDC/IDC shall be payable as per actual demand by DTCP. * Customer shall pay car parking charges when demanded. * Customer shall pay the past overdues within 45 days from the start of the construction. * The customer shall pay all the statutory dues like GST, VAT or any other ....
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....fore, the Promoter is planning to complete the Phase-I on priority basis. Further, the Promoter wants to star Phase-II of the Project where only 12% of area is sold only after completion of Phase-I or when atleast 75% units will be booked. Since there are only 22 units booked and allotted in Phase-II and the Company has collected only initial booking amount of Rs. 3.67 crores, therefore, the Promoters is planning to either request the customers of Phase-II to wait to restart of the construction or may refund the amount by selling those units to other buyers. (iv) Cost to Complete the Phase-I and Proposed Planning of Funds As per the estimation of the Promoter, balance cost of construction of Phase-I is approx 52.73 crores. However, as per the report of independent Architect and Audit Company "Qonquest" submitted by the IRP, the balance cost of construction of Phase-I is approx Rs. 71.21 crores and on the conservative basis, even if we consider the balance cost of construction is Rs. 71.21 crores, the total balance cost to complete the Phase-I of the Project will be Rs. 122.28 crores as per the following details: &nb....
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....#39;occupancy certificate' and obtaining approvals before delivery of flats. 3. Funds Flow The Applicant has considered 100% inflow of funds at the completion of every stage of construction, which is practically not possible. After analysing that 86 Homebuyers (19%) in Phase-I have not yet submitted their claims, I have observed that the corporate debtor will not get more than 90% of balance dues from Homebuyers, and in case of unsold flats, the corporate debtor will not get more than 60% after sale of flats, until the Project is completely delivered. Keeping in view the above assumptions, I have changed the inflow and usage of funds, as per Annexure-II. In my report dated 22.02.2021, I have reported that the balance dues receivable by the corporate debtor are Rs. 120.38 crore. The Balance dues are overstated by Rs. 2.48 crore on account of IFMS increased from Rs. 50 per SQFT in the BBA, to Rs. 75 per SQFT, due to increase in maintenance liabilities of corporate debtor increased from 2 years earlier to 5 years now, by change in Govt. policy. IFMS dues are in the nature of security from the allottees, and cannot be used....
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....the head 'Customer Cases', there is a condition to withdraw all cases/complaints shall be withdrawn/settled by the Homebuyers immediately. This condition is unfair until the flats are delivered to the homebuyers. 8. The Homebuyers has shown concern on the 'Balance Dues receivable' by the corporate debtor. I have addressed their concern by sharing their information with them/their lawyers. 9. The Homebuyers has a major concern that the approval of Proposed Settlement Plan' will result into 'No action against the Applicant for preferential/undervalued transactions. The funds required to complete the Project should be inducted as 'Reverse of preferential/undervalued transactions'. 5. CONTRACTOR'S CONCERNS:- Indsao Infratech informed that he had discussions with the Applicant and is ready to restart construction immediately. He further requested that as an 'Operational Creditor', he has submitted a claim of Rs. 2.33 Crore and requested that he shall be paid Rs. 12.50 Lakh per month from his claim amount (Annexure-IV)....
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....p; f) The existing management will provide an approach road before completion of the Project. g) The Promoters has agreed to provide Personal and Corporate Guarantee for taking finance for the Project and made the provision and back up to start immediately without wasting any time." 16. It is important to mention that no settlement plan encompassing all the allottees has been filed to date. The allottees of different groups have filed IA 183 of 2020, 184 of 2020 dated 10th January 2020, IA 205 of 2020 dated 13th January 2020, IA 330 of 2020 dated 22nd January 2020, IA 366 of 2020 dated 31st January 2020, IA 560 of 2020 dated 03rd February 2020, IA 738 of 2020 dated 13th February 2020, IA 739 of 2020 dated 13th February 2020 and 756 of 2020 dated 14th February 2020 for Impleadment. Only some of them favour the purported settlement plan, and others oppose the scheme. However, it is undisputed to date there is no consensus among the allottees for the said settlement plan. 17. In its latest status report, Interim Resolution Professional submitted that some homebuyers want that reverse CIRP as a better option because the Promoter offered to deliver flat....