AI Drafter 
TaxTMI 
TaxTMI 
2024 (11) TMI 1186
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..... 113 (ND/2021), which is being impugned in this case. As per this Appeal, the Appellants are seeking, inter-alia, equitable treatment with that of other creditors in class. Specifically, they seek amendment of the Information Memorandum (IM) reflecting the units of the Appellants as cancelled and further seek that the present Appeal be allowed and the Impugned Order be set aside. Submissions of the Appellant 2. The Appellants had entered into several flat buyer's Agreements with the Corporate Debtor on various dates, under which flats were allotted to the CA (AT) (Ins) No. 1974 of 2024 3 of 20 Appellants. As per the Agreements, the Appellants had paid their respective consideration amount. The details of Agreement along with payments are herein below : Sl. No. Name of the Allottee Date of the Flat Buyer Agreement/Endorsement Consideration (Amount paid to builder till date)(INR) 1. Shilpi Sharma 13.10.2007 35,62,609.00 2. Supriya Singh 21.06.2013 22,93,145.09 3. Namrata Singh 21.06.2013 23,40,852.94 4. Prabin Kumar 03.08.2012 39,24,156 5. Sandeep Singh Gill 20.09.2007 19,56,995 6. Anjali Dabral 0....
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....36 36,82,803.87 3. Namrata Singh 29.03.2022 42,33,270.54 38,16,822.74 4. Prabin Kumar 31.03.2022 46,52,237.00 46,52,237.00 5. Sandeep Singh Gill 31.03.2022 40,55,850.00 38,05,850.00 6. Anjali Dabral 08.04.2022 44,05,519.00 45,05,369.00 7. RP issued the Form -G/EOI and five EOI were received all of which were found to be defective. Form -G was revised and re-published on 23.06.2022. After various extensions in the CIRP, on 20.10.2022 in the 5th meeting of the CoC, the matter relating to the allotment of cases similar to Appellants' cases was discussed as item no. 8 of the agenda, which is reproduced as follows: "............ Item No. 8 Discussion on the issue of Status of Recipients of Refund Amount According to the Insolvency and Bankruptcy Code, 2016. The RP informed the CoC Members that certain unit holders have sought refund either from RERA /Consumer Dispute Resolution forums. At the time of receipt of the partial refunds by these recipients, their units were cancelled without informing the unit holders about the same and allotted to someone else in some cases. As a result, the....
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.... the same cannot be restored. It was further informed by the RP that the Appellants cannot be treated at par with other 15 homebuyers whose units were not cancelled, despite them being on the same boat. 11. The final approved Resolution Plan of Clause 6 provides that the allottees whose units have been cancelled shall be allotted unit at base selling price (BSP) of INR 4200 per sq feet of super area. Additionally, it was provided that 100% of their admitted principal amount shall be adjusted against the freshly allotted unit. The Resolution Plan further provided that the allottees shall have the option to choose from a unit within 90 days from the plan effective date. Further in the event allottees do not choose a unit for allotment as per the terms mentioned, such allottees will be entitled to refund of 50% of the principal amount in terms of Clause 6. It was also clarified that allottees who have clear allotment and do not fall in any of the above categories, shall be allotted a unit at their original allotment rate as per their BBA or Allotment Letter. 12. Appellant contends that the AA has wrongly relied on the judgment of this Appellate Tribunal in "Sunil Chauhan vs. Rab....
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.... that the units allotted to the Applicants were cancelled by the Corporate Debtor even prior to the initiation of CIRP period. 18. Respondent No. 1/RP admitted the balance amount to be paid to them and kept them in a separate category of creditors in a class of homebuyers. 19. The details of the flat buyer Agreement, date of RERA Order, date of cancellation of the units by the Corporate Debtor and data submission of claims with the RP are as follows : S.No Name of the Allottees Date of the Flat Buyer Agreement Date of issuance of RERA Order Date of Cancellation of Units by CD Date of admission of CIRP of the CD Date of Submissio n of Claim with RP 1. Shilpi Sharma 13.10.2007 24.07.2018 15.11.2019 10.03.2022 19.04.2022 2. Supriya Singh 21.06.2013 14.03.2019 04.01.2021 29.03.2022 3. Namrata Singh 21.06.2013 12.04.2019 04.01.2021 29.03.2022 4. Prabin Kumar 03.08.2012 07.02.2019 04.01.2021 31.03.2022 5. Sandeep Singh Gill 20.09.2007 20.09.2007 20.01.2022 31.03.2022 6. Anjali Dabral 05.09.2007 11.12.2018 31.08.2021 08.04.2022 20. It is claimed by t....
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.... the books of the CD as per the provisions of the Insolvency and Bankruptcy Code, 2016. The RP lacks adjudicatory powers on the claims filed before him. The RP could not have reversed the actions of cancellation taken by the Corporate Debtor prior to the initiation of CIRP. 27. It is further to be noted that the Applicants in the instant case had gone into the execution of the Order of refund of money and were made part payments by the CD prior to the initiation of CRIP. Submissions of Respondent No. 2/SRA 28. One City Infrastructure Pvt Ltd is the Successful Resolution Applicant (SRA) in the instant case. It is claimed by the SRA that basis invitation of expression of interest (Form-G) on 21.06.2022, they filed their expression of interest. The allotment of the Applicants was shown as cancelled in the Information Memorandum. In fact, this was cancelled by the erstwhile management of the Corporate Debtor, much prior to the commencement of CIRP of the CD. However, when the CoC and the RP requested the SRA to address the concern qua the cancelled allotment in the Resolution Plan, the Respondent agreed to provide fair and equitable treatment to the said cancelled allotments. ....
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..... (a) Allow the present Appeal; (b) Set aside the Impugned Order dated 07.08.2024 passed in IA No. 5939/2023 in CP IB-113(ND)/2021 by the Hon'ble National Company Law Tribunal, New Delhi, Bench -III. (c) Pass a direction restoring the units no. D03/08/01, D02/04/01, D03/08/03, D11/04/02, D09/05/02, D11/02/03 back to the Appellants (original allottee) in terms of the builder buyer agreement executed between Appellants and the Corporate Debtor. (d) direct the Respondent No. 1/Resolution Professional to modify/amend the Information Memorandum and include the units of the Appellants under the same category as that of the other unit holders. (e) Direct the Respondent No. 2 to make appropriate amendment in the Resolution Plan and treat the Appellants at par with the other allottees having clear allotment and allot units no. D03/08/01, D02/04/01, D03/08/03, D11/04/02, D09/05/02, D11/02/03 to the Applicant (original allottee) in terms of the builder buyer agreement executed between Appellants and the Corporate Debtor; and (f) Pass any other or further order(s) as this Hon'ble Tribunal may deem fit and necessary in the facts and circumst....
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....e unit had been cancelled prior to plan effective date, and the refund due to them had not been made, or only partial refund has been made, d. For Allottee whose unit is not available with the corporate debtor. e. For Allottee with a unit in the Unsold towers as per IM, These allottees do not have a unit allotted to them or if allotted, the allotment is invalid not available. Therefore, fresh allotment shall be done only for these cases. These Allottees/Decree Holders can choose from available units with the Corporate Debtor at a Base Selling Price (BSP) of INR 4200 per square feet of Super area. 100% of their admitted Principal Amount shall be adjusted against the freshly allotted unit. These Allottees shall have to choose from a unit within 90 days from the Plan Effective Date. In the event Allottees do not choose a unit for allotment as per the terms mentioned, such Allottees will be entitled to refund of 50% of the Principal Amount in terms of clause 6. It is clarified that Allottees who have clear allotment and do not fall in any of the above categories, shall be allotted a unit at their original allotment rate as per their BBA or allotment letter ". 38. E....
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....otment. 42. With respect to the claim that the principles of natural justice have not been followed, the Appellants always had opportunities to raise the objections either at the stage when they were getting part money based on the UPRERA Order or at the very beginning when CIRP process was going on and when they had an opportunity to raise the objections. It is to be noted that the Information Memorandum was based on the Corporate Debtor's record and the Appellants by participating in the CoC meetings were deemed to have the knowledge of the information contained therein. Even though they had brought out their grievances before the RP, who in turn took it up in the meeting of the CoC, they cannot claim that they did not have the knowledge of the cancellation of their units till the time of the 5th CoC meeting and there was violation of principles of natural justice. 43. It is to be noted that the Appellants did not challenge their cancellation of allotment, which was pre-CIRP. It is also clear from records that they have accepted the partial payments basis the decretal amount of UPRERA. Now their primary grievance is qua the cancellation of their respective units. Since earl....