TaxTMI 
TaxTMI 
2022 (8) TMI 178
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....mpany Law Tribunal, New Delhi Bench, Court-III whereby the Adjudicating Authority admitted Application under Section 9 of Insolvency & Bankruptcy Code, 2016 (in short IBC) and CIRP Proceedings were initiated with the appointment of Mr. Yogesh Gupta, as the IRP. Brief Facts: 2. Appellant Mr. Anil Kaushal is a Financial Creditor (in short FC) in this case, being a Home Buyer of the project "Blossom Zest" being developed by Corporate Debtor (in short CD) i.e. Logix City Developers Pvt. Ltd. who is Respondent No. 2 (in short R-2) in the present Appeal. Blossom Zest is a project being developed by Corporate Debtor to be constructed on Plot No. GH-02, Sector 143, Expressway Noida, which was launched in the year 2011 consisting of 3309 Apartments out of these 2600 Apartments were sold to Financial Creditors (Home Buyers) who booked apartments and Appellant is one of them. Appellant entered into in agreement with CD according to which possession of the apartment was to handed over on 11th November, 2013. However, the CD defaulted in providing timely possession of the apartments to allottees/ Home Buyers (FC) of almost nine years. 3. The Appellant along with similarly placed allott....
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.... filed the Present Appeal before us. Appellant's Submissions: 6.(a) Learned Counsels for the Appellant submitted that Application under Section 9 of IBC by OC was barred by Section 10A of IBC as well as barred due to noncompliance of threshold limit of Rs. 1 crore as per Section 4 of IBC. Appellant further state that it is very clear from the e-mail send by OC to CD on 4th March, 2020 (Supra) that admittedly the debt was Rs. 88,90,740/-. Appellant stated that further two invoices of Rs. 7,02,100/- dated 1st April, 2020 which is marked as Annexure R-2 at Page No. 44 and Rs. 4,36,600/- dated 4th April, 2020 which is marked as Annexure R-2 at Page No. 46 were sent as afterthought and were issued merely to meet the threshold requirement of Rs. 1 Crore of Section 4 of IBC. (b) Further he stated that OC failed to provide any calculation in the petition under Section 9 of IBC Application. (c) Learned Counsel for the Appellant submitted that two invoices quoted above are neither signed nor stamped in contrast to other invoices which are marked as Annexure R-2 at Page No. 33 to 43 filed with the petition as such the two invoices are bogus and cannot be taken into consideratio....
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....nnexure A-5 of Volume IV). Thereafter, Appellant along with other Homebuyers filed an Application under Section 7 of IBC vide CP (IB) No. 440(ND)/2021 on 13th July, 2021 before the Adjudicating Authority. He further alleged that despite CD having admitted that "default" in Section 7 of IBC Application, the Petition has not been decided till date. (b) Appellant stated that CD during arguments in CP No. IB 883(ND)/2022 claimed that CD is not in a position to pay debt of Rs. 1.08 crore of OC and contrary to this CD in reply to Section 7 of IBC petition in IB 440 (ND)/ 2021 has claimed that CD has all wherewithal to complete the project involving hundreds of crores of rupees. This further prove connivance of OC and CD to frustrate Section 7 of IBC Application of hundreds of Homebuyers. (c) Therefore, it has been prayed to set aside the Impugned Order dated 22nd March, 2022. An Interlocutory Application bearing I.A. No. 1171 of 2022 in Company Appeal (AT) (Ins.) No. 448 of 2022 has been filed on behalf of the Appellant for stay of the Impugned Order. Respondent's Submissions: 9. Learned Counsel for the Respondent No. 1 i.e. OC stated that the entire Application of the Appell....
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....t be signed due to outbreak of COVID-19. g. He also denied that in Form 3 issued on 10th April 2020, he did not provide any details of default in order to mislead the Adjudicating Authority. h. He also denied the claim of Appellant that no Annexure giving details of calculation were given. i. Learned Counsel further submitted that Appellant/ Homebuyers are in any case at liberty to submit their claims before IRP appointed under Section 9 of IBC in CIRP Proceedings and therefore, no prejudice shall be caused to them. Analysis : 10. We have perused the record available and heard the Learned Counsel for both the parties. According to us, following issues are required to be deliberated upon to take suitable decision in the present appeal. (i) Whether the Appellant has locus in the appeal where Section 9 of IBC Petition had been adjudicated by NCLT, New Delhi, Bench-III on 22nd March, 2022 in CP (IB) No. 883/2020 and Appellant was neither Applicant nor Respondent in that Petition which is been challenged now. (ii) Is Section 10A of IBC applicable to the Present Case. (iii) Whether the application under Section 9 filed by the Op....
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....e with IRP, Mr. Yogesh Kumar Gupta, Appellant may be at disadvantage. We observe that in this situation at the best in CoC, Appellant will be represented only by an Authorised representative as also admitted by OC in contrast to Appellant participation as dominant FC in CoC in case their Petition under Section 7 of IBC would have been admitted. Appellant, therefore, pleaded that they are directly aggrieved person i.e. connected with the present case and therefore, Appellant has locus in the Present Appeal before us. We see no reason, as to why the Appellant cannot be held to be aggrieved by the Impugned Order dated 22.03.2022 so as to enable him to file Appeal under Section 61 of the Code. Section 61, sub-section (1) provides: "61. Appeals and Appellate Authority.-(1) Notwithstanding anything to the contrary contained under the Companies Act 2013 (18 of 2013), any person aggrieved by the order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal." We find the contention of Learned Counsel for the Appellant logical that Appellant is directly affected party and therefore, got right to be heard to protect fina....
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....ails, letters and visits to collect over dues they are unsuccessful and this email is their last effort failing which they will take further action including legal remedies. Subsequently, Form-3 as demand notice was issued on 10th April, 2020 claiming outstanding dues of Rs. 1,08,12,591/-. In one of the columns for mentioning date of default, it was indicated that 'dates on which default occurred is mentioned in the statement of defaults' however, same was not evident clearly from the record. In same the demand notice reference has been given on email dated 04.03.2020 (Supra) demanding clearing of all dues outstanding. As discuss above, this email mentions amount of only Rs. 88,90,740/-. It has been brought out that two invoices i.e. Invoice No. BZ-109 dated 1st April, 2020 amounting to Rs. 7,02,100/- and Invoice No. BZ-110 dated 4th April, 2020 amounting to Rs. 4,36,600/- have been issued without any seal and signature. Admittedly, these two invoices dated 1st April, 2020 & 4th April, 2020 have been issued after 25th March, 2020. Hence, these two invoices will be barred by Section 10A of IBC. Issue: (iii) Whether the application under Section 9 filed by the Operational Creditor....
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.... threshold limit of Rs. 1 crore after excluding two invoices dated 01.04.2020 amounting to Rs. 7,02,100/- and invoice dated 04.04.2020 amounting to Rs. 4,36,600/-. As such the petition itself was not maintainable before the Adjudicating Authority. 12. We have also perused Impugned Order dated 22nd March, 2022 and noted that Learned Adjudicating Authority has mentioned outstanding due as Rs. 1,08,12,591/- which were acknowledged and confirmed by CD. Based of same Learned Adjudicating Authority accepted the OC's Petition and appointed Mr. Yogesh Kumar Gupta as IRP to initiate CIRP Proceedings. It is noted that the Appellant had filed Intervention Application bearing I.A. No. 10/ 2021 in IB-883(ND)/ 2020 which was dismissed as withdrawn and the Petitioner claims that this was done on the advice of Adjudicating Authority to file Section 7 of IBC Petition separately. To defeat the Petition under Section 7 of IBC was filed by Appellant before the Adjudicating Authority in CP (IB) 440 (ND)/ 2021, where, Appellant has claimed total due of Rs. 87,39,76,750/- as on 15th May, 2021. It is understood that the said Petition is still under consideration of Adjudicating Authority. 13. Be tha....