TaxTMI 
TaxTMI 
2024 (4) TMI 238
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.... Bench, New Delhi, the 'Appellant / Applicant', along with Others, had preferred CP (IB) No. 596 (PB) / 2021 as 'Financial Creditors', under Section 7 of the I & B Code, 2016, read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority Rules, 2016), while passing the 'Impugned Order', dated 06.01.2023, the 'Adjudicating Authority' / 'National Company Law Tribunal', among other things, at Paragraph Nos. V to VIII, had observed the following, and finally dismissed the main 'Company Petition ' : V. " The Corporate Debtor vide letter dated 22.07.2011 addressed to the allottees, including the Applicants, claimed that the 'Sushant Megapolis' Project is progressing well and construction work in the project is in good shape. Further, the Corporate Debtor indicated that the possession of certain houses & plots is expected to be handed over in the year 2011 itself. The Corporate Debtor also assured the allottees that there is no dispute regarding land in the project and the project 'Sushant Megapolis' is not affected by any rulings passed by the Hon'ble High Court of Allahabad as well as the Hon'ble Supreme Court of India. However, the possession of the said un....
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....he Applicants, which are as follows: i. Plot Allottee agreement ii. Built-up Unit Allottee agreement iii. Apartment Allottee agreement ANNEXURE A-3 (Ref: Page 1388, 1412, 1443 of the Application). c) Letter dated 22.07.2011 sent by the Corporate Debtor to the Applicants herein. ANNEXURE A-4 (Ref: Page 1503 of the Application). d) Chart and details of each applicant reflecting payments made by the Financial Creditors of the Corporate Debtor. ANNEXURE A-6 (Ref: Page 1511 of the Application). e) Sanctioned plan of Sushant Megapolis' as available on the website of UP RERA. ANNEXURE B (Ref: Page 71 of I.A. 1935/2022 IN CP (IB) 596 (PB)/2021). f) Environmental Clearance dated 09.10.2009 with respect to the project 'Sushant Megapolis' ANNEXURE A (Ref: Page 42 of I.A. 1935/2022 IN CP (IB) 596 (PB)/2021). g) Brochure of the project 'Sushant Megapolis'. Annexure C ( Ref: Page 81 of I.A. 1935 / 2022 in CP (IB) 596 (PB) / 2021 ) " and finally 'dismissed' the main 'Company Petition', as 'not maintainable'. Appellant's Contentions : 3. Assailing the correctness, propriety and validity of the 'Impugned Order', dated 06.01.2023, passed by the 'Adjudicating Authority', Princ....
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....oject', shall have the meanings respectively assigned to them in clause (d) and (zn) of Section 2 of the Real Estate (Regulation and Development) Act, 2016. 8. The Learned Counsel for the Appellant, points out that the 'Appellant' is an 'Allottee', who had purchased a 'Plot', in the Project 'Sushant Megapolis', being developed by the 'Corporate Debtor', and that the 'Project', comprises of 'Plots', 'Builtup Plots', 'Row Houses' / 'Flats' / 'Floors', 'High-rise Apartments', under various allocated Site, within the same 'Real Estate Project'. The time for 'Handing over the Possession of the 'Allotted Unit', is from 36 months to 42 months, from the date of sanction of the 'Layout Plan' of the 'Allotted Unit' (vide Clause 4.1 at Page 85 of the Appeal Paper Book (Vol. I). 9. The 'Unitholders', had entered into 'Allotment Agreements' (vide Page 53 of the Vol-I of the Appellant's Appeal Paper Book), with the 'Corporate Debtor', which states that the 'Corporate Debtor', is the one responsible to allot and construct the 'Units of different specifications and sizes and handover possession' (vide Clause f at Page 55 of the Vol-I of the Appellant's Appeal Paper Book). 10. The Learned Counse....
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....btor', for the entire 'Hightech Township' / 'Sushant Megapolis' (vide Page 186 of the Vol. II of the Appellant's Appeal Paper Book). Indeed, the Letter dated 07.10.2009, issued by the 'Environment Impact Assessment Authority', Uttar Pradesh, reveals that 'Environmental Clearance', was granted, to the entire 'Hitech Township / Sushant Megapolis', as a 'Single Project'. 14. It comes to be known that the 'Corporate Debtor', through a Letter dated 22.07.2011 (vide Page 168 of the Vol. II of the Appellant's Appeal Paper Book), itself considers the 'Sushant Megapolis', as the 'Project' and addressed a common Correspondence, to all the 'Allottees' of 'Megapolis Township Project', claiming that the Project 'Sushant Megapolis', is progressing well and construction work in the Project, is in good shape. Added further, the 'Brochure', made available to the 'Allottees' (vide Page 132 of the 'Rejoinder', and also available on the 'Project', itself shows 'Sushant Megapolis', as single Project). In fact, the Letter dated 10.08.2023,issued by the 'Corporate Debtor' to one of the 'Unitholders', on the Letterhead of 'Sarvottam Megapolis', denoting 'Sarvottam Megapolis', as 'One Project' (vide Page ....
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.... Section 2 (zn) of the said RERA Act, while deciding Section 7 of the 'Application', the Hon'ble Supreme Court in Manish Kumar's case, had although, referred to Section 2 (zn) and Section 3 of the RERA Act, 2016 (vide Paragraph 113 & 114 of Manish Kumar's case), however even then, the Hon'ble Court had opined that 'what would constitute a real estate project', will depend on a 'fact-based enquiry', on what was offered to the 'allottees', to be decided on case-to-case basis. Hence, it is contended on behalf of the Appellant that the 'Adjudicating Authority' / 'Tribunal', had passed the 'Impugned Order', without going into the facts and circumstances of the instant case, but only relied on 'RERA Registrations', secured by the 'Corporate Debtor', pursuant to the 'RERA Act, 2016'. 20. The Learned Counsel for the Appellant, comes out with a plea that the 'Corporate Debtor', apart from furnishing a 'self serving interpretation', to the provisions of the 'RERA Act, 2016', and the I & B Code, 2016, took the defence, of separate 'RERA Registrations', which is an 'incorrect' one. Indeed, the provisions of the 'RERA Act, 2016', came into force, only on 01.05.2016, much after the creation of ....
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.... RERA registrations', for each of the 'Buildings. 25. The Learned Counsel for the Appellant, points out that the 'Unitholders', invest their 'hard earned money', into the Project', not only to the 'Unit', but, also, the 'surrounding facility', which are 'Habitable'. Hence, as per the 'Impugned Order' of the 'Adjudicating Authority' / 'Tribunal', the 'CIRP' of 'one of the Buildings', may be initiated, however, despite successful 'CIRP' of the said Building, the 'Unitholders', will not be able to peacefully reside in the 'said premise peacefully', since, the other part of the 'Project', still be under 'construction', which might include commonalities like Clubs, Schools, Parks, Roads, etc. Moreover, it will be cumbersome, for the 'Allottees', to meet the 'threshold', prescribed under second proviso of Section 7 of the 'Code', on a 'per building' basis, which was never the intent behind inserting the proviso. As such, the interpretation, laid down by the 'Adjudicating Authority' / 'Tribunal', is an 'incorrect' one, because it defeats the object of the I & B Code, 2016, and 'Legislative Intent', behind recognising 'Allottees', as 'Financial Creditors', through explanation, added to Se....
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....Project', relying mainly on the numerous 'RERA Regulations', obtained by the 'Corporate Debtor' for different phases of the project 'Sushant Megapolis'. 30. The Learned Counsel for the Appellant by referring to the Paragraph 151 of Manish Kumar's decision of the Hon'ble Supreme Court (2021) 5 SCC 1 at Spl Pg: 95, points out that the expansive definition, of real estate project, in Section 2 (zn) was noted, and it was observed by the Hon'ble Supreme Court "it will depend on what is offered by the promoter under the project. It may be real estate project, which seeks to develop a building and sale of the building. It may be a project for the construction of apartments, with the agreements, to convey the undivided interest of land also. It may be a project which envisages converting an existing building or a part into an apartment. It may be a project for merely development of land into plots and sale of the plotted land as such. It may be also that the same person may also develop either apartments or building to be sold". 31. The Learned Counsel for the Appellant, contends that, even if a 'factual assessment', would have been made by the 'Adjudicating Authority' / 'Tribunal', then....
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....of the 'Code'. 35. The Learned Counsel for the Appellant, refers to Paragraph 177 of the decision of the Hon'ble Supreme Court in Manish Kumar v. Union of India & Anr., reported in (2021) 5 SCC On-line SCC 1, wherein, it is observed as under: 177. "The rationale behind confining allottees to the same real estate project is to promote the object of the Code". The Hon'ble Supreme Court notes that "if on the other hand the requirement was to make a search for allottees of different projects, as would be the case, if the entirety of the allottees, under different projects, were to be reckoned, the task would have been more cumbersome". 36. The Learned Counsel for the Appellant points out that by drawing reference from the explanation of Section 3 of the RERA Act, 2016, the 'Impugned Order', passed by the 'Adjudicating Authority' / 'Tribunal', had incorrectly interpreted the term 'same real estate project', although, it is settled 'Law' that an explanation 'cannot alter the scope of a Section of the other Legislations', places reliance upon Paragraph 53 of the Hon'ble Supreme Court of India's decision in S. Sundaram Pillai v. V.R. Pattabiraman [(1985)] 1 SCC 591. 37. While rounding....
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....se and if no safeguard, as in the form of provisos to Section 7 of the 'Code', are provided thereto, then, the same would lead to an 'Abuse of Process', and 'defeating the purpose of the Code', in the hands of a 'Single Allottee', in a 'Real Estate Project', who has the sole intent of seeking 'Recovery' / 'Refund' of the 'Amount', deposited. Whereas, other 'thousands of allottees' of the same 'Project', very well are to be considered, to be the 'critical mass of Allottees', such Project, are still desirous of taking possession of their units and still have their faith, reposed in the existing management of the 'Corporate Debtor'. 42. The Learned Counsel for the Respondent, brings to the notice of this 'Tribunal', that the Hon'ble Supreme Court of India, has devised the aforesaid three distinctive features, including that of 'Heterogeneity', relating to this 'class of Financial Creditors, i.e. 'Allottees', and further, opined in this regard, there can be further 'sub-classification' and 'differences', in the said 'Category of Allottees', in a given 'Real Estate Project', who can be said to be similarly situated, in regard to the purpose of the I & B Code, 2016, which includes 'elim....
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....ed that "what is required is Allotment and not promised Flats as per 'Brochure'. It is also not the 'total constructed units'. This is as what is relevant under the impugned provisos, read with Section-5(8)(f) explanation of the I & B Code, 2016, and Section-2(d) of RERA read with Section-11(1)(b) of the 'Act' and the rules made thereunder is the 'Booking of Apartments or Plots.' 46. Continuing further, the Hon'ble Supreme Court of India, had observed that in the teeth of an argument that '10%' is dynamic and what is '1/10' in the 'morning', may fall short by night, if more Allotment is made, the Hon'ble Apex Court, held that the mere difficulties in given cases, to comply with a 'Law', can hardly furnish a ground to strike it down. As to what would constitute the 'Real Estate Project', it must depend on the 'Terms & Conditions', and scope of a particular 'Real Estate Project', in which the 'Allottees', are, a 'part of'. These are factual matters, to be considered in the 'facts of each case'. 47. The Learned Counsel for the Respondent points out that the Hon'ble Supreme Court of India, pertaining to the construction of the terms such as 'Allottee', 'Real Estate Project' and 'Allo....
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....btor', including the 'Pre-RERA Allotment Agreements', layout plans, environmental clearances, obtained for the 'Township Sushant Megapolis', as well as the 'RERA Registration of 25 separate Projects', in the said 'Township Sushant Megapolis', were taken into account, based on the same, the 'Adjudicating Authority / Tribunal', had opined, that the 'Corporate Debtor', has submitted RERA registration details, which contain 25 projects, having separate 'RERA Registrations'. Also he had shown the break-up of the number of Applicants in the present Petition, in respect of the 9 categories of the projects (as seem from perusal of the 'Allotment Agreements', and other records of the 'Township', to discern the scope of the 'Real Estate Project', within the said 'Township', as offered by the 'Promoter.' 52. The forceful plea of the 'Respondent' is that, in none of the 'Project / Project categories', the 'Petitioners', meet the 'threshold limit of 10%' or '100 persons', whichever is less. Moreover, it is pointed out, on behalf of the Respondent that even the documents, with the Appellant, has placed reliance, to contend that the separately 'Registered 25 Real Estate Projects', in truth, is '....
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....en admitted would stand withdrawn within 30 days, if the newly declared threshold of 100 allottees or 10 per cent of the allottee whichever is lower was not garnered by the applicant/applicants." 47. It was submitted that the right to file an application under Section 7 is a statutory right and it can be conditioned. Reliance is placed on judgment of this Court in Gujarat Agro Industries Co. Ltd. v. Municipal Corporation of the City of Ahmedabad and others 26. There is no inherent or absolute right to file an application under Section 7 of the Code. The Legislature is well within its power to impose conditions for the exercise of such statutory rights. It is further contended that the third proviso 23 (1985) 4 SCC 369 24 (1985) 1 SCC 523 25 (2009) 13 SCC 165 26 (1999) 4 SCC 468 inserted in Section 7(1) does not affect any vested right of the creditors who have already filed applications for initiating CIRP. A vested right has been the subject matter of several decisions. In this regard reliance is placed on the following judgments: i. Howrah Municipal Corporation v. Ganges Rope Co. Ltd. (2004) 1 SCC 663; ii. ArcelorMittal India (P) Ltd v. Satish Kumar Gupta (2019) 2 SCC 1; ....
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.... buildings or plots/apartments and plots/buildings. As far as the expression 'allottee' is concerned, since the Code in the Explanation to Section 5(8)(f), incorporates the definition of the word 'allottee' in RERA, for the purpose of the provisos in question, we must necessarily seek light only from the expression 'allottee' defined in Section 2(d) of RERA." 58. The Learned Counsel for the Respondent, adverts to decision of the Hon'ble Supreme Court in Manish Kumar's case, reported in (2021) 5 SCC Page 1 at Spl Pg: 93, wherein, at Paragraph Nos. 146, it is observed as under: 146. "'Building' has been defined as including any structure or erection or part of any structure and intended to be used for residential or commercial purposes, inter alia. Thus, an allotment under RERA can be in relation to a plot, an apartment or a building. In other words, a project, would be in relation to plots, apartments or buildings. It could also be for a composite one for plots and apartments or for plots and buildings. We have noticed the expansive definition of the word apartment and flats are comprehended within the definition of the word apartment. We have also noticed in this regard, the def....
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....legislative intention the term 'allottees' as defined in Section 2(d) must be understood undoubtedly on its own terms predominantly. But at the same time the other provisions which form part of the Act and therefore the scheme must also be borne in mind. The Argument that the definition of 'allottee' suffers from over inclusiveness and under inclusiveness needs to be considered. Under inclusiveness and over inclusiveness are aspects of the guarantee under Article 14. Equals must be treated equally. Unequals must not be treated equally. What constitutes reasonable classification must depend upon the facts of each case, the context provided by the statute, the existence of intelligible differentia which has led to the grouping of the persons or things as a class and the leaving out of those who do not share the intelligible differentia. No doubt it must bear rational nexus to the objects sought to be achieved. 153. Coming to the definition of the word 'allottee' it appears to be split up into three categories broadly, they are-plot, apartment and buildings. 154. Be that as it may, as we have noticed the question must be decided with reference to real nature of the real estate pro....
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....os. In other words, even though the provisos require that in the case of a real estate project, being conducted by a corporate debtor, an application can be filed by either one hundred allottees or allottees constituting one-tenth of the allottees, whichever is less, if they are able to establish a default in regard to a financial creditor and it is not necessary that there must be default qua any of the applicants. 24. Therefore, it is pertinent to state that Section 7(1) of the Code, 2016 mandates the Financial Creditors, who are allottees under a Real Estate Project, to file an Application for initiating CIRP against the Corporate Debtor jointly by not less than 100 of such allottees under the same Real Estate Project or not less than 10% of the total number of such allottees under the same Real Estate Project, whichever is less." 62. The Learned Counsel for the Respondent, falls back upon the 'Order' of this 'Tribunal' in Mist Direct Sales (P) Ltd. v. Nitin Batra, wherein, at Paragraph Nos. 9, 14 & 27, it is observed as under: 9. "Three main questions which arise for consideration in this Appeal are:- (i) Whether the joint application under Section 7 against 'Anand Infoed....
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....t implementation plan. We are happy to inform you that erstwhile Management for various reasons ultimately we decided to bring us as new and efficient implementing partner so that our esteemed buyers may be delivered their Units as early as possible. Accordingly, the arrangements of Anand Infoedge Private Ltd. ('AIPL') with earlier collaborator (Mist Avenue Private Ltd) were cancelled in entirety and a new arrangement was entered with us on 27th July 2017. We have now taken charge of the project for early implementation. Our esteemed allottees/buyers shall be provided the Services in best possible manner. We wish to inform you that we have also taken charge of the inventories already sold by the earlier company and have received all your papers/documents together with the account of money paid by you under the assignment arrangements made for the said purpose. We solicit your cooperation and patronage and to bless us to achieve the target much before the schedule date. With warm personal regards. Yours Truly For Mist Direct Sales Private Ltd. (CRM TEAM)" 27. We in the present case are concerned with the Second Proviso which provides that an Application for initiat....
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....No. 2885/2023 dated 05.12.2023 wherein it has been contended that the Financial Creditor entered into three MOUs with the Corporate Debtor dated 04.11.2016 for Flat No. 302, 303 and 304 in the project named SUNRISERS for aggregate sale amount of Rs. 1,85,33,317/- (One Crore Eighty-Five Lakhs Thirty-Three Thousand Three Hundred and Seventeen Only), Rs. 1,83,42,394/- (Rupees One Crore Eighty-Three Lakhs Forty- Two Thousand Three Hundred and Ninety-Four Only) and Rs. 1,87,54,895/- (Rupees One Crore Eighty-Seven Lakhs Fifty-Four Thousand Eight Hundred and Ninety-Five Only). As per the MOUs an advance of Rs. 1,00,000/- (Rupees One Lakh) for each flat was paid by the Financial Creditor and respective Loan amount against the three flats i.e. Flat No. 302, 303 and 304 was paid by availing loan facility from SBI. In consonance with the Rol clause in the MOU, it has been submitted that the Applicant is an investor in the present set of circumstances." 64. The Learned Counsel for the Respondent, relies on the decision of the Hon'ble Supreme Court in BPTP Spacio Park Serene Flat Allottees Welfare Association (Bawa v. Sudhansu Tripathi - 2023, SCC Online SC 1184, wherein, at Paragraph 9, it is....
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....arcel of land, in the project "SUSHANT MEGAPOLIS' (hereinafter referred as "the Project"), being developed by the 'Corporate Debtor', namely 'M/s ANSAL HITECH TOWNSHIPS LTD.' 67. As a matter of fact, the 'Appellant', and other 'Petitioners / Financial Creditors', before the 'Adjudicating Authority / Tribunal', under Part IV of the main CP (IB) No. 596 (PB) / 2021, had mentioned that the 'Government of State of Uttar Pradesh', selected 'M/s. Uttam Steel & Associates (Consortium)' for the development of 'Hi-Tech Township', at the location, near Dadri Town, adjoining Greater Noida, Uttar Pradesh, in accordance of the HI-Tech Township Policy, dated 22.11.2003. As per the scheduled development activities, the Project, would comprise of various Row Houses / Flats / Floors, Villas / Bungalows, High-rise Apartments, School / Educational Institutions / Hospitals / Health Centres, Corporate Parks, Commercial and Retail Centres, etc. on the Project Property. On 13.12.2006, a detailed 'Project Report', was submitted by the aforesaid consortium for development of the Hi-Tech Township to the Bulandsahar Development Authority, comprising of the 2504 Acres of Land, i.e., 'schedule property'. The ....
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....m the type of Allotted Residential Unit'. That apart, according to the 'Appellant', 'No definite time frame', for 'delivering possession of the Residential Units to the Allottees', was 'not incorporated in the Agreements.' 70. As per the 'Appellant's Claim', the 'Total Sum', to be claimed, in 'Default' in the main 'Company Petition', was Rs.41,81,90,116/-, as on 15.03.2021. Features of Reply of the Respondent / Corporate Debtor : 71. The Respondent / Corporate Debtor in its 'Reply', to CP (IB) No. 596 (PB) / 2021 (On the File of the 'Adjudicating Authority' / 'Tribunal'), had mentioned that the 'Alleged Financial Creditors', are the 'Home Buyers / Investors', claiming to have purchased Residential Flats / Plots in the 'Township Project', developed by the 'Corporate Debtor', under the banner of 'Sushant Megapolis', situated near two Dadri, adjoining Greater Noida, Uttar Pradesh. 72. According to the Respondent / Corporate Debtor, the 'Financial Creditors', had considered and agreed to purchase the Residential Units and Plots, since, the 'Corporate Debtor / Respondent', had guaranteed and assured the timely physical possession of the Flats / Villas / Plots in the 'Megapolis Town....
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....t money, from the Respondent / Company, when they are not even 'Genuine Bona fide Home Buyers'. 77. Furthermore, the main CP (IB) No. 596 (PB) / 2021, filed by the 'Petitioners', is to be dismissed 'ipso facto', in the teeth of Section 3 of the I & B Code (Amendment Act 2020) whereby, Section 7 of the I & B Code, 2016, was amended and by virtue of the Amended Section 7 of the 'Code', the 'Adjudicating Authority' / Tribunal', 'ought to dismiss an 'Application', if the Application was not foiled by at least, '100 Allottees' or '10% of the Total Allottees' of the same 'Real Estate Project'. 78. In fact, the 'Petitioners' do not satisfy the required criteria, as they do not constitute either '100 Allottees' or '10% of the 'Total Allottees' of the same 'Real Estate Project'. The 'Petitioners', had failed to disclose, that they were the 'Allottees' of different 'Housing and Commercial Project of the Township', and had filed the 'Petition', together with, to simply meet the 'threshold of 100 Allottees'. The Chart, depicting the Projectwise break-up of the Petitioners, is mentioned as under: S. No. Name / Category of Project Total No. of Units Total No. of Sold Units Total No. of A....
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....rtment to more than one person, is it to be taken as only one allottee or as many allottees as there are joint allottees, it would appear to us, on a proper understanding of the definition of the word 'allottee' in Section 2(d) and the object, for which the requirement of hundred allottees or one-tenth has been put, and also, not being oblivious to Section 399(2) of the Companies Act, 1956, as also the Explanation in Section 244(1) of the Companies Act, 2013, in the case of a joint allotment of an apartment, plot or a building to more than one person, the allotment can only be treated as a single allotment. This for the reason that the object of the Statute, admittedly, is to ensure that there is a critical mass of persons (allottees), who agree that the time is ripe to invoke the Code and to submit to the inexorable processes under the Code, with all its attendant perils. The object of maintaining speed in the CIRP and also the balancing of interest of all the stakeholders, would be promoted by the view that as in the case of the Companies Acts, 1956 and 2013, that for the purpose of complying with the impugned provisos in Section 7(1), while the allottee can be of any of the cate....
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.... the Land to the Respondent, causing further delay in the construction of the said 'Project'. Later, the Project further delay, due to a 'Stay Order', passed by the 'National Green Tribunal', in Akash Vashishta & Anr. v. Union of India (vide OA No.121 / 2013), wherein a 'Stay Order', was passed on the construction of the 'Township', upon false allegations that the 'Respondent Developer', had 'reclaimed and encroached upon wet lands', and further, 'carried out Construction on such Land'. Finally, the 'Stay Order' in MA No. 1121 /2016 in OA No.121 /2013, was vacated by the 'National Green Tribunal', on 12.09.2017 (after a gap of four years), which caused a 'delay', in completing the 'Project'. 86. The Respondent / Corporate Debtor, points out that the 'License' for developing the Township, was granted on 26.11.2006, by the Uttar Pradesh Government with the Construction site, to be completed on 25.11.2016. However, due to the unforeseen delay, caused by the reason(s) beyond the Respondent / Corporate Debtor's control, the 'Township Construction', was not to be completed, within the 'stipulated deadline'. Also that, from the Year 2016, the Respondent / Company's multiple requests for ....
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.... any manner any plot, apartment or building, as the case may be, in any real estate project or part of it, in any planning area, without registering the real estate project with the Real Estate Regulatory Authority', established under this Act. Provided that projects that are ongoing on the date of commencement of this Act and for which the completion certificate has not been issued, the promoter shall make an application to the Authority for registration of the said project within a period of three months from the date of commencement of this Act. ............ ............. ............. Explanation. - For the purpose of this section, where the real estate project is to be developed in phases, every such phase shall be considered a standalone real estate project, and the promoter shall obtain registration under this Act for each phase separately". 92. The contention of the Learned Counsel for the Respondent / Corporate Debtor is that, the Respondent / Company, was required by the provisions of 'RERA', to register each sub-project separately, as the 'Township', was being developed in a phased manner and therefore, each and every phase, was considered as a 'stand-alone Re....
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....he case may be, and includes the common areas, the development works, all improvements and structures thereon, and all easement, rights and appurtenance belonging thereto;" 95. The Learned Counsel for the Respondent / Corporate Debtor contends that the 'Adjudicating Authority' / 'Tribunal', is not a 'Recovery Forum', but, only a 'Resolution Forum'. As a matter of fact, the Hon'ble Supreme Court in the matter of Swiss Ribbons Private Limited & Anr. v. Union of India & Ors., reported in (2019) 4 SCC at Page 17, had observed that the I & B Code, 2016, is a beneficial legislation which puts the Corporate Debtor, back on its feet and not being a 'Recovery Legislation' for 'Creditors'. 96. According to the Respondent / Corporate Debtor, Section 65 (1) of the I & B Code, 2016, discourages the use of the I & B Code, 2016, as a 'Recovery Mechanism', and even, Section 65 of the 'Code', prescribes a 'penalty', for those who initiate the 'Corporate Insolvency Resolution Process' or 'Liquidation', 'Fraudulently' or with a 'Malicious Intent'. The Appellant (Petitioner), and the other Petitioners, who initiated the 'Malicious Proceedings' in CP (IB) No. 596 (PB) /2021 (on the File of the 'Adjud....
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.... In such a case, an order of admission under Section 7 of the IB Code must follow. If the NCLT finds that there is a debt, but it has not become due and payable, the application under Section 7 can be rejected. Otherwise, there is no ground available to reject the application." and contends that the 'Adjudicating Authority' / 'Tribunal', had committed an 'error', in passing the 'Impugned Order' in CP (IB) No. 596 (PB) / 2021, on the file of the 'Adjudicating Authority' / 'Tribunal'. 100. According to the Appellant / Petitioner (himself and other Petitioners), had entered into a 'Buyer / Building Agreement(s)' with the 'Respondent / Corporate Debtor' and it is understood, that along with their respective 'Units / Plots', the 'Allottees', shall have the access to the surrounding facilities. Resultantly, the 'Allottees', make a total payment that encompasses both their unit and the development of the surrounding areas, ensuring a well-developed and habitable society for them to reside in. 101. The stand of the Appellant is that, in cases where a Builder / Developer, can secure different 'RERA Registrations', for 'different parts of a particular project', such as 'different Registra....
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.... or non-performance', cannot be justified or excused merely on the invocation of Covid-19 as a 'Force Majeure' condition. Further, it is observed that 'the particular Court would have to assess the conduct of the Parties prior to the outbreak and whether, genuinely, a Party was prevented or is able to justify its non-performance due to the epidemic / pandemic. 106. It is projected on the side of the Appellant / Petitioner, that the 'Appellant / Petitioner' in 'Section 7 Application of the I & B Code, 2016, (filed before the 'Adjudicating Authority' / 'Tribunal'), has only made the 'Co-Allottees', as Parties, to the said 'Application'. But, the Chart of the Allottees, filed before the 'Adjudicating Authority' / 'Tribunal' (vide Annexure A-8 of the Appeal Paper Book at Page 337) consists of '107 Unit Holders' / 'Allottees', who had preferred the 'Application'. Analysis : 107. At the outset, this 'Tribunal' points out that according to the Appellant / Petitioner, in view of the fact that the Respondent / Corporate Debtor, had committed 'Default' concerning the 'Financial Debt', as per Section 5 (8) (f) Explanation (i) of the I & B Code, 2016, the Section 7 Application in CP (IB) N....
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....EMA DWIVEDI CO APPLICANT 58 ARUNA UPADHYAY CO APPLICANT 60 HARSHIT MITTAL CO APPLICANT 65 MRIDU SHARMA CO APPLICANT 69 AMITABH TRIVEDY CO APPLICANT 71 RAKESH KUMAR CO APPLICANT 73 SAURABH GARG CO APPLICANT 76 MEGHA BELSARE CO APPLICANT 80 DEEPIKA BHATIA CO APPLICANT 83 DR. SANJEEV JAIN CO APPLICANT 85 USHA RAWAT CO APPLICANT 87 PRASHANT SHARMA CO APPLICANT 89 SHAYOK BURMAN CO APPLICANT 92 DHATRI VERMA CO APPLICANT 94 JAYA RAMKUMAR CO APPLICANT 96 NIVEDITA PANDEY CO APPLICANT 102 MANISHA RAI CO APPLICANT 107 SUMAN SAINI CO APPLICANT 109 ASHRU KANA CHOWDHURY CO APPLICANT 117 PARUL MAKKAR CO APPLICANT 121 VINOD SABHARWAL CO APPLICANT 123 VIDYAWATI TRIPATHI CO APPLICANT 125 HARSH MALHOTRA CO APPLICANT 127 SURUCHI KHANNA CO APPLICANT 130 SANGEETA MITTAL CO APPLICANT 132 PRASHANT KUMAR BAGGA CO APPLICANT 138 ROOPAM BHATIA CO APPLICANT 141 KULJIT SOOD CO APPLICANT 144 AMRITA PANDEY CO APPLICANT 149 NISHA AGARWAL CO APPLICANT 152 ANIL AHLUWALIA CO APPLICANT 111. The emphatic stand of the Respondent / Corporate Debtor is that 'Sushant Megapolis' Township, comprise of 'Multiple Commercial Real Estate ....
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....ot the 'Property', which is at the base of the 'Code'. It is the 'Liquidity', which is the foundation for triggering the 'Corporate Insolvency Resolution Process'. 118. No wonder, an 'Adjudicating Authority' / 'Tribunal', is not constituted for the 'Recovery of Debt'. It is not out of place for this 'Tribunal', to make a significant mention that the provisions of 'RERA', are beneficial to the 'Home Buyers' and are meant to protect them, from any 'Deviant' / 'Fraudulent Action'. 119. A mere perusal of Section 3 (1) Explanation of the 'Real Estate (Regulation & Development) Act, 2016', under the caption 'Prior registration of real estate project with Real Estate Regulatory Authority', points out that where the 'real estate project', is to be developed in phases, 'every such phases', shall be considered a 'standalone real estate project', and the 'Promoter', shall obtain Registration, under this Act, for 'each phase', separately. 120. In the instant case, the Respondent / Corporate Debtor, had executed, at least 'Three kinds of Agreements, with the 'Petitioners' (before the 'Adjudicating Authority' / 'Tribunal') (a) 'Plot Allottee Agreement' (b) 'Builtup Unit Allottee Agreement' an....