TaxTMI 
TaxTMI 
2022 (6) TMI 925
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...., 2016' ('Code') against the impugned order dated 16.01.2020 passed by the National Company Law Tribunal, Principal Bench, New Delhi (Adjudicating Authority) whereby the `Adjudicating Authority' had dismissed the CA No. 2265 (PB)/2019 in CP (IB) No.593(PB)/2018. 2. The twelve 'commercial space buyers' as seems from the details are the individual as depicted below: Mr. Alok Sharma S/o Mr. Vinod Kumar Sharma R/o1402, Govardhan Apartments, Kaushambi, Ghaziabad - 201 010 Mrs. Neelam Sharma W/o Mr. Vinod Kumar Sharma R/o1402, Govardhan Apartments, Kaushambi, Ghaziabad - 201 010 Mrs.Rashmi Singh W/o Mr. Rakesh Singh R/o 7B(HIG) Green View Apartments, Sec-99, Noida, UP-201 303 Through power of attorney holder namely Mr. Alok Sharma Mr. Ambika Prasad Yadav S/o Mr. late Jaskarn Yadav R/o B-1202, Apex Green Valley, Vaishali, Sector-9 Ghaziabad, UP-201 010 Through power of attorney holder namely Mr. Alok Sharma Mr. Arun Kumar Yadav S/o A.P Yadav R/o B-1202, Apex Green Valley, Vaishali, ....
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....paid the monies and allotment issues, the allottees were given possession of their respective units in 2015 without completion of fit -out works, only functional lifts, maintenance facilities etc. Such allottees also spent monies from their own pockets in completing the remaining works of their respective units and requested the CD to executed the sale deed in their favour. It is the case of the Appellant that they have written numerous email and letters to the CD between 2015-2018 highlighting the day to day difficulty etc. including non-registration of the sale deed (appearing at page 46 to page 90 of the Appeal paper book where emails are their). c. The Ld counsel for the Appellant has stated that not only they have released all the payment in respect of commercial spaces but even a few of the allottees have in fact also paid the registration charges for execution of the sale deed since 2015. The Allottees learnt about the CIRP of the CD and as soon as they learnt, they approach the IRP have correspondence with him also (appearing at Annexure 2 of the Appeal paper book). It was stated by the Appellant that the allottees were allowed possession in these units in 2015 wit....
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.... be dismissed without hearing on merit as the same is barred by period of limitation. b. The Ld counsel for the Respondent has also submitted that CD is the owner of the commercial space. However, he has accepted the fact that the CD had handed over the possession of the Commercial space to the Appellant and only sale deed was pending for execution by the CD in favour of allottees prior to the commencement of CIRP. He has also cited Section 54 of the Transfer of Property Act, 1882 defining sale which is a transfer of ownership in exchange of price paid or so and transfer of ownership of a particular assets, the execution of sale deed is a sine qua non requisite and has cited the judgment of Hon'ble Apex Court in Narandas Karsondas Vs. S.A.Kamtam and Anr., (1977) 3 SCC 247 wherein it has been held that "a contract of sale does not of itself create any interest in, or charge on, the property etc". c. The Ld counsel has also stated that CoC has approved the Resolution Plan which is binding on the Appellants and at the same he has confirmed that it is yet to be approved by the Adjudicating Authority. The Ld counsel has also stated that the Appellant being minority Dis....
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....ble legal regime, given that the IBC is a Code in itself and has overriding effect. Sections 61(1) and (2) of the IBC consciously omit the requirement of limitation being computed from when the "order is made available to the aggrieved party", in contradistinction to Section 421(3) of the Companies Act. Owing to the special nature of the IBC, the aggrieved party is expected to exercise due diligence and apply for a certified copy upon pronouncement of the order it seeks to assail, in consonance with the requirements of Rule 22(2) of the NCLAT Rules. Section 12(2) of the Limitation Act allows for an exclusion of the time requisite for obtaining a copy of the decree or order appealed against. It is not open to a person aggrieved by an order under the IBC to await the receipt of a free certified copy under Section 420(3) of the Companies Act 2013 read with Rule 50 of the NCLT and prevent limitation from running. Accepting such a construction will upset the timely framework of the IBC. The litigant has to file its appeal within thirty days, which can be extended up to a period of fifteen days, and no more, upon showing sufficient cause. A sleight of interpretation of procedural rules c....
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....een filed on 20.02.2020. This reflects that this Tribunal has a power to grant extension upto 45 days. vii. From the contents of the impugned order dated 16.01.2020 came to the knowledge of the Appellant on 21.01.2020 when it was uploaded on the website of NCLT, New Delhi. Accordingly, the present appeal is within limitation. That even in the recent judgment of Nagarajan Vs. SKS Ispat and Power Ltd. & ors. Civil Appeal No. 3327 of 2020 relied upon by the Respondent, the Hon'ble Supreme Court opined: "21. The litigant has to file its appeal within thirty days, which can be extended up to a period of fifteen days, and no more, upon showing sufficient cause." viii. Based on the elaboration, it is imperative on the Tribunal to consider sympathetically and to help the weaker who are the buyers under the Real Estate Project and hence, the Appeal filed within 45 days seems to be in order. d. What the Respondent/RP has pointed out that the CD is the owner of the 'Commercial Space' and has accepted that the possession was with the Appellants admittedly. The Appellants are allottees of commercial space in 'Coral Brio'. Although the CD had handed over the possess....
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....nd an agreement of sale does not create any interest or charge on its subject matter." Even relying on the above concept what has been provided by the Respondent/RP there is a need to look at Section 14 of the Code which is depicted below: "Section 14: Moratorium. 14. (1) Subject to provisions of sub-sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall by order declare moratorium for prohibiting all of the following, namely:- (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property ....
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....ase may be. From the above, it is clear that 'moratorium' is applicable under Section 14(1)(b) of the Code is on transferring of any assets of the CD. f. Let us see in this case whether under real estate project whether Revenue from sale of such constructed spaces/houses will be considered under the caption "Asset" sale or will it be considered as "Revenue from operations" under Schedule -III, Part-II of the Companies Act, 2013 ? Here, it is observed that in case of real estate company, such constructed spaces/houses as and when sold its sale price goes to the heading 'Revenue from operations' of the profit and loss accounts of the Company being part of its commercial operation. If this houses / constructed spaces belongs to a company which is not in real estate business and is an industrial company/manufacturing company then the impact of sale from such houses will appear in the 'Balance Sheet' of the Company as per Schedule-III Part-I-(II Assets) of the Companies Act, 2013 and any sale of this house by this industrial company, if it results into a profit or loss on the sale of such assets, then it will reflect to the extent of profit or loss on sale of this assets only i....
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....and in most of the cases, thereafter no money has been paid. The large number of projects which have come up not only in Noida and Greater Noida, but most of them have not been completed by the builders/promoters and they have siphoned buyers' money in large scale. No action has been taken by the Noida and Greater Noida Authorities against builders for cancellation of leases due to violation to fulfil their obligation. Bankers have financed to builder certain loan on the condition to invest in the projects, but they have also permitted the money to be used as for other purposes as apparent from the report of the Forensic Audit in the instant case which had been submitted by Auditors - Mr. Pawan Kumar Aggarwal and Mr. Ravinder Bhatia. The facts which are projected in the Forensic Auditor Report speaks for itself." "173. We have also found that non-payment of dues of the Noida and Greater Noida Authorities and the banks cannot come in the way of occupation of flats by home buyers as money of home buyers has been diverted due to the inaction of Officials of Noida/ Greater Noida Authorities. They cannot sell the buildings or demolish them nor can enforce the charge against....
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....rcumstances in which the law came to be passed to decide whether there is something implicit behind the words actually used which would control the literal meaning of the words used. For the said purpose, reliance was placed on R.L. Arora (2) v. State of U.P. [R.L. Arora (2) v. State of U.P., (1964) 6 SCR 784 : AIR 1964 SC 1230] . Dealing with the said aspect, the Court has observed thus: (Vijay Transport case [Bank of India v. Vijay Transport, 1988 Supp SCC 47 : AIR 1988 SC 151] , SCC p. 51, para 11) "11. ... It may be that in interpreting the words of the provision of a statute, the setting in which such words are placed may be taken into consideration, but that does not mean that even though the words which are to be interpreted convey a clear meaning, still a different interpretation or meaning should be given to them because of the setting. In other words, while the setting of the words may sometimes be necessary for the interpretation of the words of the statute, but that has not been ruled by this Court to be the only and the surest method of interpretation." l. All the above also suggests that the rights of home buyers cannot be affected adversely in the `Corpor....