2023 (5) TMI 978

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.... R-1. Mr. Usman G. Khan, Advocate for R-2 ORDER Per : Justice Rakesh Kumar Jain ( Oral ) This appeal is directed against the order dated 01.02.2023 passed by the National Company Law Tribunal, New Delhi Court -IV (hereinafter referred as to 'the Adjudicating Authority) by which an application filed by the Appellant bearing Intervention Petition No. 07 of 2023 filed in CP (IB) No. 541/ND/2022, has been dismissed. 2. In brief, M/s.Orbis Trusteeship Service Pvt. Ltd. filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred as to 'The Code') for initiation of Corporate Insolvency Resolution Process (hereinafter referred as to 'CIRP') against M/s. Kindle Infraheights Pvt. Ltd on accoun....

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.... to support the case of the Respondent for dismissal of the application filed under Section 7 of the Code by the Financial Creditor. It is argued that the said application has been dismissed only on the ground that no rationale has been found by the Adjudicating Authority in filing and maintaining the said application. 6. Counsel for the Appellant has relied upon an order passed by this Tribunal in the case of 'Ashmeet Singh Bhatia Vs. Sundrm Copnsultants Pvt. Ltd. & Anr. in Company Appeal (AT) (Ins) No. 557 of 2021' to contend that in the said case, it has been held that the application under Section 65 of the Code, can be filed even before the admission of the application filed under section 7 or 9 of the Code because the word used in ....

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.... is as to whether an application like the one in hand could have been maintained at the instance of the Appellant before the admission of the application under Section 7 of the Code? 10. There is no dispute that the Applicants/Appellants are the homebuyers who have booked their units in the said project being developed by the Corporate Debtor. However, as submitted by counsel for Respondent, the units which has been booked by the Appellants are in the Tower "Joy and Spark" which is far beyond completion. It is further the case of the Respondent that there are large number of homebuyers and if all of them keep on filing the application before the order of admission then the timeline which is provided for the purpose of pursuing the applic....

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....n has been passed on account of exceptional facts and circumstances, as noticed above and is not to be treated as any declaration of law". 12. On the other hand, the order passed in the case of Surinder pal Singh (supra), this court was dealing with an application which was filed by homebuyer as an Intervener in the proceedings under Section 7 of the Code and held that the Application under Section 7 is not maintainable till the application under Section 7 is admitted. However, a window was kept open for the Applicant by observing thus "it shall be open to the Appellant to file appropriate fresh application in the event application is admitted under Section 7 IBC." In the case of Prayag Polytech Pvt. Ltd. (Supra) in that case it was held....