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2023 (3) TMI 177
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.... Bankruptcy Code, 2016 (for short 'I&B Code") against the Order dated 06th July, 2021 passed by the Adjudicating Authority (National Company Law Tribunal, Division Bench, Allahabad) in C.P. (IB) No. 227/ALD/2019, whereby the Adjudicating Authority rejected the Application filed by the Appellant. Brief Facts: Appellant's Submissions: 2. Aggrieved by the aforesaid order, the Appellant preferred the present Appeal. The Learned Counsel appearing for the Appellant submitted that the Appellant purchased two cottages at the Holiday Resort developed by the Respondent in the name & style of "EON Resort" situated at Midway Corbett Ranikhet, Near Maa Bhonadevi Temple, Ghatti - Basot Road, Village Jihad, District - Almora for a total consideration o....
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....t made contradictory and false statement made on affidavit by denying the existence of any loan due to the Appellant. However, in the Respondent / Corporate Debtor admitted the due amount in its 1st Reply affidavit. 5. It is submitted that by virtue of two cancellation agreements dated 20.11.2018 the allotment of two cottages provided through agreement dated 15.04.2016 and assured the return agreement dated 22.07.2016, providing assured return @ 16% per annum came to an end thereby changing the status of the Appellant from investor to that of lender. 6. It is submitted that the Learned Adjudicating Authority rejected the application by holding that the Appellant is a homebuyer and do not fall under the category of lender, who lent the mon....
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....nt to pay the Assured Return as per negotiated amount. The Assured Return would be 16% of BSP received or Rs. 28,949/- per month for a period of 30 months from the date of receipt of earnest money. 11. As per Clause (4) of Agreement to Sell, the Appellant will lease back a property immediately at the time of possession to the Corporate Debtor and the Corporate Debtor shall pay the assured monthly rental at the rate given in Annexure-A of the Agreement to Sell. Further, as per Clause (14) of Agreement to Sell, the Corporate Debtor has given an option to buy back the property from the Appellant under different rates after the expiry of different period. 12. The Learned Counsel further submitted that the case of the Appellant's is in the nat....
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....reement with the aforesaid assurance that they will deposit Rs.45,00,000/- through new buyer and get their allotment cancelled. However, the Appellants have not come forward and has not paid Rs.45,00,000/- to the Corporate Debtor and the cheques given by the Appellant were dishonoured. 14. It is submitted that the cancellation agreements dated 20.11.2018, it is specifically stated that both the agreements are false fabricated and were never executed by any of the person of the Corporate Debtor. 15. In view of the reasons as stated above the Learned Counsel has prayed this Bench to dismiss the Appeal as devoid of any merit. Analysis / Appraisal: 16. Heard the Learned Counsel appeared for the respective parties perused the pleadings, docu....
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....preamble, it is clear that the Corporate Debtor in the capacity as seller and developer and the Appellant being the purchaser entered the said agreement. The covenant of the agreement emphasises that the project / cottages will take approximately 30 months to complete and the same will be delivered after completion of construction. The total consideration of each cottage mentioned as Rs. 76,33,000. /-. In Clause 14 of the Agreement to Sell, the Corporate Debtor / Seller has given a buy back option to the Appellant/ Buyer for the said property as per the terms mentioned there at. The Appellant and the Corporate Debtor also entered Assured Return Agreement dated 22.07.2016, whereby it is stated that the Corporate Debtor will pay @ 16% per ann....
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....on for the reason that the minimum threshold for Financial Creditors in the case of homebuyers as per Section 7(1) proviso as amended by act one of 2020 which read as under: "Provided further that for Financial Creditors, who are allottees under a real estate project, an application for initiating Corporate Insolvency Resolution Process against the Corporate Debtor shall be filed jointly by not less than one hundred of such allottees under the same real estate project or not less than ten percent of the total number of such allottees under the same real estate project, whichever is less." 22. The Hon'ble Supreme Court in the matter of Manish Kumar Vs. Union of India & Anr. (W.P. (C) No. 26 of 2020), whereby the Hon'ble Supreme Court uphe....