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2024 (4) TMI 1064
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....lay in filing the claim and to direct Respondent No.1 i.e. Resolution Professional Mr. Nilesh Sharma to admit the claim of the Appellant's in the category of "Financial Creditor". 2. The Insolvency Petition against the Corporate Debtor was admitted by the Adjudicating Authority vide Order dated 06.09.2019 and Mr. Manish Gupta was appointed as Interim Resolution Professional ("IRP"). 3. The IRP invited claims from all creditors by issuing an Advertisement in Form A dated 17.10.2019 in the Financial Express (English) and Jansatta (Hindi) Delhi/NCR edition on 18.10.2019. The last date of submission of Claims was fixed as 29.10.2019. The maximum period of 90 days from the date of publication of Form A expired on 15.01.2020. Mr. Nilesh Sharma was appointed as regular Resolution Professional on 16.01.2020. The last date for submission of claims was 15.01.2020. 4. Plan of Respondent No. 2, an association of homebuyers having over 220 members was approved by the Committee of Creditors ("CoC") on 15.05.2021 with 90.66% votes and is the Successful Resolution Applicant. The Plan is pending consideration before the Adjudicating Authority. 5. The Claim Form of the Appellant was submitted on....
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....r and was in control of possession of entire list of homebuyers / allottees. Respondent No.1 declared 106 units as unclaimed units, even though, he had information about the same units. Resolution Professional did not scrutinise carefully and the claims of many homebuyers were declared unclaimed and termed as unsold inventory. 12. The Appellant came to know about the CIRP of the Corporate Debtor in July, 2021 and it filed its claim on 20.07.2021 with the Respondent No.1. 13. Resolution Professional/Respondent No.1 failed to either accept or reject the claim within 7 days of filing the claim. 14. The Appellants approached Adjudicating Authority under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 ("Code") read with Rule 11 of the NCLT Rules, 2016 seeking condonation of delay in filing claim and seeking a direction to Respondent No.1 to include the claim of the Appellants in the list of homebuyers. The Appellants claim that a delay in filing was neither intentional nor wilful but due to no knowledge of the proceedings. 15. Appellant also seeks to exclude the period from 15.03.2020 till 28.02.2022 due to the order of Hon'ble Supreme Court dated 10.01.2022 in Suo Motu Wr....
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.... of such homebuyers whose claims were rejected to refund their allotment money altogether. 20. The Appellant has relied on Puneet Kaur v. K.V. Developers Private Limited, Company Appeal (AT) (Insolvency) No. 390 of 2022, dated 01.06.2022 of this Tribunal, wherein it was held that Regulation 36(2) of the CIRP Regulations, 2016 obliges the RP to include assets and liabilities of the Corporate Debtor and also the liability towards those homebuyers who have not filed their claims and is required to be included in the Information Memorandum. The information memorandum (on the basis of which resolution plan is made) includes all assets and liabilities of the corporate debtor, all of which shall be appropriately dealt with in the resolution plan, since non-consideration of claims will lead to unfair resolution. It was also held that when payments have been received by Corporate Debtor and allotments letters have been issued to homebuyers, then the liabilities towards the homebuyers cannot be wished away only because there was a delay in filing a claim before the Resolution Professional. 21. The Appellant claims that Resolution Professional/Respondent No.1 has not carried out its statuto....
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....ubmitted by Victory Ace Social Welfare Society (SRA), by the CoC with 90.66% voting share in its 11th Meeting held on 07.05.2021. It is pending for approval before the Adjudicating Authority in I.A. No.3250 of 2021 filed under Section 30(6) of the Code on 09.06.2021. The Application filed by the Appellant is a belated attempt to circumvent the law and seek an illegal entry into the CoC and the list of Financial Creditors. 25. The Appellant is seeking possession of the unit which is registered in the name of one Mr. Ashok Kumar Sharma, whose claim was submitted within time and has been duly accepted by the RP. As per the CRM data, the unit bearing D2-601 is registered in the name of Mr. Ashok Kumar Sharma. That the claim of this person was submitted in time and has been duly admitted. The claim of Mr. Sharma is duly reflected in the list of claims under the class of first sale. 26. As the Appellant had made payment in cash, the alleged receipt dated 15.05.2015 is not an accounting receipt, which does not have a serial number or not accounted for in the books of account. The payment of Rs.50,00,000/- is not reflected in the books of accounts of the Corporate Debtor. The receipt als....
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....ner and/or on such belated stage, that too after the stipulated time, so provided for submitting claims, in that event, the Resolution Plans can never get materialized and there would be no resolution of Corporate Debtor which is main object of the IB Code, more so, when CIRP is to be completed in a time bound manner. 30. The Resolution Applicant submits that his resolution plan was based only on the basis of the Information Memorandum published by the Resolution Professional. The Information Memorandum contains the List of Creditors prepared by the RP on the basis of claims received. Resolution Applicant cannot be asked to submit a plan beyond the information which is available in the Information Memorandum. Based on the information provided by the Consortium Applicant (RA) which is a consortium of homebuyers within the project of the Corporate Debtor itself, submitted a resolution plan in their own commercial wisdom which the RP certified to be in compliance of Section 30 of the Code. The Resolution Applicant which is the association of homebuyers have also provided alternative units to second sale allottee and in the facts of the present case, the proposed treatment of extingui....
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..... Vs. NBCC (India) Limited & Ors. (2022) 1 SCC 401 which had held that if a claim is not made within the stipulated time, the same cannot become a part of the Information Memorandum to be prepared by IRP and obviously, it would not enter into consideration of the resolution applicant as also of the Committee of Creditors. 34. The Resolution Professional / Respondent No.1 submits that he has duly undertaken its duty under Section 25 of the Code. In compliance with the provisions of the IBC, the RP undertook the process of collation and verification of claims and upon the verification of the books of accounts of the Corporate Debtor duly reflected the unit qua which the claims have been received and units qua which no claims have been received. It is worthy to note that the Answering Respondent has time and again uploaded on the website of the Corporate Debtor on 26.06.2020, Nil date, 29.10.2020, 17.11.2020 the complete list of the allottees, who are yet to file their claim with respect to the flats allotted to them and claims with regard to whom no claim has been admitted. The detailed list uploaded pertains to the name of the allottee, unit number, sale price, amount due, amount r....
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....llowed the ratio laid down in M/s RPS Infrastructure (Supra), in a plethora of judicial pronouncements such as "IDBI Bank Ltd. V. Jalesh Kumar Grover, RP of GPI Textiles, Company Appeal (AT) (Ins) No. 799 of 2023 and "Millennium Construction Pvt. Ltd. V. Rakesh Kumar Gupta (IRP), Company Appeal (AT) (Ins) No. 1172 of 2023. Thus, the judicial pronouncements of Col Sanjeev Dalal Retd Vs M/S International Recreation and Amusement Limited and Dr. Shankar Sawant & Anr v. Arjun Kapoor, Resolution Professional for Monarch Brookfield LLP duly relied upon by the Appellant is not applicable to the present case. 40. It is noteworthy that the intent of the Code is to inter alia permit a restructuring process, whereby, the liability of a Corporate Debtor could be reset in order to enable a new management to begin on a clean slate for reviving the business of the Corporate Debtor. It is submitted that the Hon'ble Supreme Court in the matter of Essar Steel v Satish Gupta & Ors, 2019 SCC OnLine SC 1478, held that: "88. A successful resolution applicant cannot suddenly be faced with "undecided" claims after the resolution plan submitted by him has been accepted as this would amount to a hydra he....
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....n. 44. The Appellant was sleeping over his rights and the legal position is well settled that a person who sleeps over his rights ought not be given any indulgence. Close to 3 years had passed since the commencement of CIRP proceedings of the Corporate Debtor and the Appellant never showed any interest with respect to the flat purchased by him. The proceedings under Code are time bound and the belated claim of the Appellant cannot be considered and is liable to be rejected. 45. The claim of the Appellant does not fall within the purview of the directions issued by the Hon'ble Supreme Court in Suo Motu Writ Petition (C) No. 3 of 2020 titled "In Re: Cognizance for Extension of limitation". The protection with regard to extension of limitation granted by the Hon'ble Supreme Court commences from 15.03.2020 and grants protection to cases only where limitation would have expired during the period of 15.03.2020 till 28.02.2022, which is not the case herein. The time period available with the Appellants itself expired on 13.01.2020 meaning that the protection granted by the Hon'ble Supreme Court in Suo Motu Writ Petition (C) No. 3 of 2020 cannot be relied upon to seek refuge. Reliance is....
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.... The Appellant also admittedly did not inquire about the status/completion of the Project for almost a decade after making the booking. 51. Be that as it may, upon receiving and collating the claims, the IRP constituted the Committee of Creditors ("CoC"). It is pertinent to mention that the Class of Creditors in this case includes 401 claims from Homebuyers- First Sale and 84 claims from Homebuyers-Second Sale. This is because many flats/units were sold twice over by the erstwhile management of the Corporate Debtor. The promoters/directors of the Corporate Debtor are facing criminal prosecution for their illegal acts and were taken into custody during investigation. 52. The Resolution Professional, upon due verification of the books of accounts of the Corporate Debtor, also published a List of Homebuyers, who have not submitted their claims but whose names are mentioned in the CRM Data of the Corporate Debtor. It is further submitted that the name of the Appellant does not appear in the said List. 53. Thereafter, Form G was published by the Resolution Professional inviting Prospective Resolution Applicants to submit their Expression of Interest and Resolution Plan. However, as a....
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....ent case, the Resolution Plan has already been approved by the CoC in May 2021 and therefore the above observations assume even greater significance. It is submitted that acceptance of any claim at this stage will entirely upset the approved Resolution Plan and push the Corporate Debtor into liquidation. 59. The reliance placed by the Appellant on this Tribunal's decision in Puneet Kaur v. K.V. Developers Private Limited, Company Appeal (AT) (Insolvency) No. 390 of 2022, vide Judgment dated 01.06.2022, is erroneous and entirely misplaced. The said decision nowhere holds that belated claims of Homebuyers have to be accepted even after approval of the Resolution Plan by the CoC. On the contrary, the said decision also affirms the existing position of law, i.e. belated claims cannot be accepted beyond the deadline prescribed in the IBC. The subsequent directions in Para 27 of Puneet Kaur (Supra), which have been relied upon by the Appellant herein, were issued in the peculiar facts of that case and do not apply to the present case. 60. Further, even the decision in Puneet Kaur (Supra) does not lay down any proposition that those homebuyers who have not submitted their claims within ....
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.... by the Appellant sufficiently supports their claim. 66. The Appellant claims to have booked a flat/unit in "Victory Ace Social Welfare Society" project of the Corporate Debtor namely, Dream Procon Pvt. Ltd on 15.05.2016. The insolvency proceedings in the case of the Corporate Debtor herein commenced on 06.09.2019. The last date of submission of the claims as per Section 15(1)(c) of the Code read with Regulation 6(2)(c) of the CIRP Regulations was 29.10.2019. Belated claims could have been filed in terms of Regulation 12(2) of the CIRP Regulations till 15.01.2020. 67. The CoC with 90.66% voting share, in the 11th Meeting of the CoC held on 07.05.2021 (through e-voting concluded on 15.05.2021) concluded its voting, wherein the Resolution Plan submitted by the Victory Ace Social Welfare Society (SRA) was duly approved by CoC. 68. The Appellant herein filed her claim on 20.07.2021 in Form C after a delay of 552 days from the last date of submission of claims i.e. 15.01.2020. 69. The delay on the Appellant's part in the instant case is of 552 days in terms of Section 15 of the Code and approximately two months after the approval of the plan from the CoC on 07.05.2021. 70. Since th....
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....as tried to rely upon Suo Motu Writ Petition (C) No. 3 of 2020 titled "In Re: Cognizance for Extension of limitation" of Hon'ble Apex Court. The protection with regard to extension of limitation granted by the Hon'ble Supreme Court commences from 15.03.2020 and grants protection to cases only where limitation would have expired during the period of 15.03.2020 till 28.02.2022. In the instant case, the time period available with the Appellants, even after 90 days, expired on 13.01.2020, much before the Covid-19 crises began, meaning that the protection granted by the Hon'ble Supreme Court in Suo Motu Writ Petition (C) No. 3 of 2020 cannot be relied upon to seek refuge. Reliance is also being placed upon the law laid down by the Hon'ble Supreme Court of India in "Sagufa Ahmed & Ors v. Upper Assam Plywood Products Pvt. Ltd. & Ors." in Civil Appeal No. 3007 of 2020 whereby, it has been categorically held that what was extended by the aforesaid order was only period of limitation and not the period up to which delay can be condoned in exercise of discretion conferred by the statute. The relevant extracts are as follows: "... 19. But we do not think that the Appellants can take r....
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....ificatory and declaratory in nature and therefore will be effective from the date on which I&B Code has come into effect; (iii) Consequently, all the dues including the statutory dues owed to the Central Government, any State Government or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period prior to the date on which the Adjudicating Authority grants its approval Under Section 31 could be continued. ..." [Emphasis supplied] 79. The facts of the instant case are distinguishable from the abovementioned judgment - the claims are belated as also not supported by other material for payments made by the Appellant and also no records of it is present in the book of accounts. The appeal in case of Ghanashyam Mishra (supra) centres around the basic issue pertaining to binding effect of resolution plan upon the creditor. 80. The issue regarding the belated claims is further enunciated in Pratap Technocrats (P) Ltd. vs. Monitoring Committee of Reliance Infratel Limited, 2021 SCC OnLine SC 569, wherein the Hon'ble Apex Court has concluded that the jurisdiction of the Adjudicating Authority under Se....
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....n and Others v. NBCC (India) Limited and Others, (2022) 1 SCC 401. A three-judge bench of the Hon'ble Supreme Court has rejected the plea of Fixed Deposit Holders for acceptance of belated claims. We note the relevant extract of belated claims as under: "... 135. In the scheme of the process for corporate insolvency resolution, it is preliminarily provided in Section 13 of the Code that, after admission of an application for corporate insolvency resolution process, the Adjudicating Authority, apart from declaring moratorium and appointing an interim resolution professional, is also required to cause a public announcement of the initiation of CIRP and 'call for submission of claims Under Section 15'. As per Section 15, the material information in the public announcement is to contain, inter alia, 'the last date for submission of claims, as may be specified'. The IRP is enjoined with several duties Under Section 18 and as per Clause (b) thereof, he is to 'receive and collate all the claims submitted by the creditors to him, pursuant to the public announcement made Under Sections 13 and 15'. CIRP Regulations make the position clearer still, where, by virtu....
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....cannot suddenly be faced with "undecided" claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution applicant who would successfully take over the business of the corporate debtor. All claims must be submitted to and decided by the resolution professional so that a prospective resolution applicant knows exactly what has to be paid in order that it may then take over and run the business of the corporate debtor. This the successful resolution applicant does on a fresh slate, as has been pointed out by us hereinabove. For these reasons, NCLAT judgment must also be set aside on this count. ..." [ Emphasis supplied ] 82. In the above case the Hon'ble Apex Court has held that a resolution applicant cannot be expected to make a provision in relation to any creditor or depositor who has failed to make a claim within the time stipulated and the extended time as permitted by Regulation 12A. The judgment is not applicable in the present case as the Appellant has not adhered to the timelines provided in the code and furthermore within the extended time ....
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....mercial entity; and that if the belated claim is by a non-commercial entity, then the plan can go back and forth and the timelines prescribed in the IBC are no longer sacrosanct. The above ratio of RPS Infrastructure (Supra) cannot be truncated in its application to cases of belated claims by commercial entities on one hand and non-commercial entities on the other hand, as suggested by the Appellant during the course of hearing. 85. Moreover, the intent of the Code is to, inter alia, permit a restructuring process, whereby, the liability of a Corporate Debtor could be reset in order to enable a new management to begin on a clean slate for reviving the business of the Corporate Debtor. The Hon'ble Supreme Court in the matter of Essar Steel v Satish Gupta & Ors, 2019 SCC OnLine SC 1478, had held that: "88. A successful resolution applicant cannot suddenly be faced with "undecided" claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution applicant who successfully take over the business of the Corporate Debtor. This the successful resolution appl....
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....ources, in that event, they will have to approach for enhancement of the loan/ infusion of money, which practically takes a longer time and by the time they would complete all these processes, the period of CIRP will be over, not to speak about further amendment of the Resolution Plan and re- voting thereon by the CoC with requisite percentage. That apart, the asset of the corporate debtor may get deteriorated, which will affect the maximization of the value of the asset of the corporate debtor. Further, if such a practice is allowed, keeping abeyance the stipulated period, that too after extended time period of 90 days, in that event, it would be difficult to complete the CIRP process, which has to be completed in time bound manner. There may be a number of creditors, who might have filed their claim beyond the prescribed period of 90 days, they may approach before this Adjudicating Authority, citing the example of this case. In that event, even if there is any chance of getting. Resolution Plan(s), the Resolution Applicants may avoid filing the Resolution Plan(s). However, in the instant matter, prospective Resolution Applicant may withdraw himself. 9. It is also pertinent ....
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....rs who are hundreds in number neither come to know about the CIRP nor did they file their claim within the fourteen days' time allowed. Even in maximum 90 days period as provided in Section 12(2), on several occasion, Homebuyers could not file their claims. The Homebuyers are a class belonging to middle class of society and majority of whom, who book flat has taken loan from Banks and other financial institutions and they are saddled with liability to pay their loan from their hardearned income they make payment to the Corporate Debtor in hope of getting a possession of the flat for their residence. Non-submission of claim within the time prescribed is a common feature in almost all project of real estate. But as law exists today, they cannot be included in the List of Creditors and that too after approval of Plan by CoC. We, thus, do not find any ground to interfere with order of the Adjudicating Authority rejecting their Application for admission of their claim. However, their claims need to be dealt in a manner, which we shall deal in later part of this judgment. XXX 17. The Hon'ble Supreme Court in Ghanashyam Mishra and Sons Private Limited vs. Edelweiss Asset Reconstruct....
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....to find out all liabilities of the Corporate Debtor and take steps towards resolution. Unless all liabilities of the Corporate Debtor are not known or included in the Information Memorandum, the occasion to complete the CIRP shall not arise. XXX 27. In the present case there is no denial that details of the Appellant(s) and other Homebuyers, who could not file their claims has not been reflected in the Information Memorandum. There being no detail of claims of the Appellant(s), the Resolution Applicant could not have been taken any consideration of the claim of the Appellant(s), hence, Resolution Plan as submitted by Resolution Applicant cannot be faulted. However, we are of the view that the claim of those Homebuyers, who could not filed their claims, but whose claims were reflected in the record of the Corporate Debtor, ought to have been included in the Information Memorandum and Resolution Applicant, ought to have been taken note of the said liabilities and should have appropriately dealt with them in the Resolution Plan. Nonconsideration of such claims, which are reflected from the record, leads to inequitable and unfair resolution as is seen in the present case. To miti....
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....lution plan as per section 31(1). Appellant, therefore, could not have been allowed by the Adjudicating Authority as the CoC in its commercial wisdom had approved the resolution plan on 07.05.2021 itself and the said resolution plan provides for specific treatment of belated claims, if any. 92. Another issue before us in the instant case is, whether basis the materials on record, can we come to a conclusion that the Appellant is a homebuyer or not. The Appellant claims to have paid a sum of Rs. 50,00,000/- to the ex-management of the Corporate Debtor in 'cash' towards 'total sale consideration' against Flat No. D2-601. The Appellant relies upon a Receipt dated 15.05.2016 purportedly issued by the Corporate Debtor as an acknowledgement of the aforesaid cash transaction. However, the said receipt is not an accounting receipt as it does not bear any serial number, receipt number or diary number and is not accounted for in the books of accounts of the Corporate Debtor. Further, on the same date on which the Allotment Letter dated 15.05.2016 was purportedly issued by the Corporate Debtor to the Appellant, a Buy Back Agreement dated 15.05.2016 has also been executed for repurchase of th....
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....the Buyback Agreement and the allotment letter shows discrepancy, particularly at page 89 of the Appeal Paper Book, wherein in one place flat number mentioned is D2-601 and in another place on the same page, the flat number is mentioned D2-2002. Further the documents referred to herein bear no signature of any witnesses. With such material on record and no details of the payments received for the flat, it is difficult to accept this evidence. The post-dated cheques cannot be a supporting evidence as corresponding payment from the Appellant to the Corporate Debtor is not established. 94. Further in "Sanjay Jain v. Nilesh Sharma", Company Appeal (AT) (Ins) No. 425 of 2021, similar unauthenticated forged documents were rejected by this Tribunal. It was held that in sum and substance documents which are just signed by two parties i.e. a suspended director and the other being the Appellant cannot be relied upon by the Adjudicating Authority. Also, for this reason, Appellant cannot be protected as per the Doctrine of Indoor Management. Her claims that she is a victim of the fraud committed by the Corporate Debtor and its Directors against her and most of the other allottees and she be n....
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....e RP basis the CRM data. Even for arguments sake it is presumed that the RP had changed its pleading, it does not help the Appellant as per the facts of the instant case wherein the belated claim will not become a claim within the time. This judicial pronouncement of is not applicable to the case herein. The appellant will not get any support basis the judgment quoted by him. 97. The claim that the Corporate Debtor has received benefit from the allotment of the Appellant, which now stands void and in compliance of Section 65 of the Indian Contract Act, 1872, the Respondents are liable to restore the benefit received from the allotment of units is not borne out of the facts of this case. As per the records of the Corporate Debtor, there exists no allotment in the Appellant and nor has any acceptable evidence been produced for the receipt of Rs. 50 Lacs by the Corporate Debtor. 98. The argument of the Appellant that as per the resolution plan for the homebuyers who have submitted their claims at a belated stage, their allotment money deposited has been deemed to be forfeited. Also Clause No.6.6 of the resolution plan titled "extinguishment of rights of Financial Creditors" mentions....
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.... uploaded the information on the website of the Corporate Debtor on various dates with respect to the complete list of the allottees who are yet to file their claim and with respect to the flats allotted for whom no claim has been admitted. The detailed list had information of the allotees with respect to their names, unit number, sale price, amount due, amount received and amount receivable. The resolution professional has also located the tally data and customer relationship management data (CRM data) not only from the premises of the Corporate Debtor, but also with the help and support of the Resolution Professional of an associate concern of the Corporate Debtor. In these conditions we do not find any substance in the claim of the Appellant that the resolution professional has failed to carry out statutory duties as prescribed under Section 25 of the Code. 101. This Tribunal in "Mr. Shyam Rathod v. Mr. Gopalsamy Ganesh Babu" Company Appeal (AT) (CH) (Ins) No. 137/2023 held that a belated claim of 125 days of a home buyer was not allowed and was rejected. Just to reiterate, there stands a delay of more than 552 days in preferring its claim in the instant case. Furthermore, in a....