TaxTMI 
TaxTMI 
2025 (3) TMI 910
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....Bisht and Mr. Rohit, Advocates with Ms. Anju Agarwal, IRP in person for IRP. Mr. Gajanand Kirodiwal, Advocate for Parmesh Construction Co. Ltd. ORDER ASHOK BHUSHAN, J. These three applications have been heard together and are being decided by this common judgment. 2. Before we notice the prayers in the above applications, we need to notice background facts and sequence of the events leading to filing of the above applications: i. On an application filed by the State Bank of Maharashtra under Section 7, vide order dated 12.06.2024, Corporate Insolvency Resolution Process (CIRP) against the corporate debtor commenced. ii. This appeal by suspended director of the corporate debtor has been filed challenging the order dated 12.06.2024. This appeal was heard on 03.07.2024, and after submission of counsel for the parties, we passed interim order and issue notices. Paragraph 10 of the interim order is as follows: "10. In the meantime, we direct that Committee of Creditors be not constituted. However, the ongoing Project may be continued with under the supervision of the IRP and the IRP shall be extended all cooperation by the Corporate Debtor, its ....
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....tion. xiv. In pursuance of the order passed by this Tribunal on 19.12.2024, the meeting was convened of the homebuyers on 31.12.2024, in the office of IRP, in which Chief Executive Officer (CEO) of the YG Estates members of the Association and IRP were present. YG Estates stated that in compliance and mutual discussion and the settlement with association, it has agreed to handover the maintenance to the association on 31.01.2025. xv. After the minutes of meeting were issued on 04.01.2025, the association wrote to the CEO of YG Estates about the outstanding liabilities of electricity bills, water bills, etc. on 27.01.2025 and requested it to clear the same. xvi. On 30.01.2025, YG Estates filed an I.A.799/2025, seeking a clarification of the order dated 19.12.2024, and seeking a direction to IRP and homebuyers to take into account the investment made an outstanding amount due and payable to the YG Estates under the Facilities Management Agreement. xvii. On 31.01.2025/01.02.2025, when maintenance facility was to be handed over, dispute arose between the association and the YG Estates. YG Estates refused to handover maintenance to the Association. As....
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....l, but the maintenance was not handed over. There being several deficiencies in the maintenance by YG Estates, association has brought into the notice of the IRP and requested the IRP to take steps for handing over the maintenance to the association. It is submitted that Noida Authority wrote a letter dated 19.12.2024 to the corporate debtor. The joint meeting was held on 31.12.2024, where YG Estates through its CEO was present and had agreed to handover maintenance to the association with effect from 31.01.2025. However, on the date of handover, the YG Estates refused to handover and created law and order situation on the spot. It is submitted that advance maintenance has been taken by YG Estates from several homebuyers. It is submitted that YG Estates cannot continue to carry on the maintenance after formation of the association. Both corporate debtor and YG Estates, which is nominee of the corporate debtor are bound to handover maintenance to the association after Registration Act of YG Estate is contrary to the statutory provisions. Learned counsel appearing for the association further submits that YG Estates having agreed to handover maintenance in the joint meeting dated 31.1....
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....ated 31.12.2024, but such handover was subject to condition that outstanding dues of YG Estates are cleared before hand over the possession, referring to a letter dated 01.02.2025 written by CEO of YG Estates to the City Magistrate, it is contended that the said letter also highlights the outstanding dues of YG Estates payable by homebuyers. Learned Sr. counsel Mr Dutta submits that still the YG Estates have no objection to in handing over maintenance provided its all dues on the homebuyers, which are Rs.2,60,14,603/- as on 03.01.2025 are paid. It is submitted that I.A.799/2025 has been filed by the YG Estates to protect its interest. 6. Learned counsel appearing in I.A.892/2025 submits that applicant is also a homebuyer of another project. Maintenance of SPIRA is still continued by the YG Estates. It is submitted that association does not consist of all homebuyers. Homebuyers of SPIRA are not part of the association. 7. IRP appearing in person submits that YG Estates cannot resist the handover of the maintenance to the association. Association does not want services of the YG Estates. YG Estates cannot force itself on the association for purposes of maintenance. IRP further ....
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....o part of the Maintenance Agreement. Association got registered under the provision of Society Registration Act, 1860, with Registrar Uttar Pradesh, as "Supernova Apartment Owners Association by registration dated 27.05.2023". Thus, association is association within meaning of Uttar Pradesh Apartment (Promotion of Construction Ownership and Maintenance) Act, 2010. Section 14 of the Act provides for the registration of the association. Section 14(1) provides for association of apartments owners for the administration of affairs in relation to apartment Owners and the property appertaining thereto. Sections 14(1), 14(2), 14(3), 14(4) & 14(5), which are relevant for the present case are as follows: "14. (1) There shall be an Association of Apartment Owners for the administration of the affairs in relation to the apartments and the property appertaining thereto and for the management of common areas and facilities : Provided that where any area has been demarcated for the construction of buildings, whether such area is called a block or pocket or by any other name, there shall be a single Association of Apartment Owners in such demarcated area. [(2) It shall ....
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.... be the responsibility of the promoter to hand over the possession of the common areas and facilities and also the originals of the plans and documents to the Association of apartment owners formed and registered under sub-section (2) of section-14. ²[Provided that handing over of physical possession of the common areas and facilities under this sub-section shall be completed within a period of one year from the date of issue of completion certificate or the date by which sixty percent of the apartments have been handed over to the owners, whichever is earlier, subject to the condition that the promoter shall be responsible for the sale and transfer of the balance apartments]; (7) The promoter shall maintain the common areas and facilities till the Association is formed in accordance with the conditions laid down in sub section (2) of section-14 and shall be entitled to levy proportionate maintenance charges as specified in the declaration." 14. Association has after forming of the association has written to the YG Estates as well as to the Noida Authority praying for directions to the YG Estates to handover the maintenance to the association. The Noida Au....
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....; (v) securities including shares held in any subsidiary of the corporate debtor, financial instruments, insurance policies;" (vi) assets subject to the determination of ownership by a court or authority;" 18. The YG Estates is an agency appointed by corporate debtor for carrying out the maintenance. Entitlement of YG Estates to carry out the maintenance flow from Agreement executed by corporate debtor in its favour, which Agreement was prior to commencement of the insolvency. After insolvency commencement date, the management of the corporate debtor stands suspended and it is the IRP who is entitled to carry on and manage the operation of the corporate director. When the Supernova project (East and West) are part of the assets of the corporate debtor, for which maintenance agencies is the YG Estates, it does not appeal to the reason that management of said project including the its maintenance is beyond the purview of the IRP. The corporate debtor having been put in the insolvency and IRP being on the helm of the affairs, all aspects of the assets of the corporate debtor are within the domain of the IRP. If IRP has jurisdiction to manage the operations that includes th....
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....esent case. However, in Gujarat Urja [Gujarat Urja Vikas Nigam Ltd. v. Amit Gupta, (2021) 7 SCC 209 : (2021) 4 SCC (Civ) 1] it was held that NCLT's jurisdiction is not limited by Section 14 in terms of the grounds of judicial intervention envisaged under IBC. It can exercise its residuary jurisdiction under Section 60(5)(c) to adjudicate on questions of law and fact that relate to or arise during an insolvency resolution process. This Court observed : (SCC p. 274, para 91) "91. The residuary jurisdiction of NCLT under Section 60(5)(c) of IBC provides it a wide discretion to adjudicate questions of law or fact arising from or in relation to the insolvency resolution proceedings. If the jurisdiction of NCLT were to be confined to actions prohibited by Section 14 of IBC, there would have been no requirement for the legislature to enact Section 60(5)(c) of IBC. Section 60(5)(c) would be rendered otiose if Section 14 is held to be exhaustive of the grounds of judicial intervention contemplated under IBC in matters of preserving the value of corporate debtor and its status as a "going concern". We hasten to add that our finding on the validity of the exercise of residuary po....
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....Ltd. v. Amit Gupta, (2021) 7 SCC 209 : (2021) 4 SCC (Civ) 1] , the contract in question was terminated by a third party based on an ipso facto clause i.e. the fact of insolvency itself constituted an event of default. It was in that context, this Court held that the contractual dispute between the parties arose in relation to the insolvency of corporate debtor and it was amenable to the jurisdiction of NCLT under Section 60(5)(c). This Court observed that : (SCC pp. 262-63, para 69) "69. ... NCLT has jurisdiction to adjudicate disputes, which arise solely from or which relate to the insolvency of corporate debtor... The nexus with the insolvency of corporate debtor must exist." ( emphasis supplied ) Thus, the residuary jurisdiction of NCLT cannot be invoked if the termination of a contract is based on grounds unrelated to the insolvency of corporate debtor." 21. It was held by the Hon'ble Supreme Court that residuary jurisdiction of NCLT cannot be invoked if the termination of the contract is based on grounds unrelated to the insolvency of the corporate debtor. The present is a case where it was corporate debtor prior to initiation of CIRP, who has appointed....
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....the case and in the interest of justice." 22. Prayers in I.A.799/2025 are to the following effect : " a) Pass appropriate directions to clarify the order dated 19.12.2024 passed by this Hon'ble Tribunal in I.A. NO. 8083 of 2024 to protect the interest of the Applicant. b) Direct RP and homebuyers associations to take into account the investment made and outstanding amount due payable to the Applicant for services provided under the facilities management agreement with Supertech Realtors Pvt. Ltd and make provisions for the same in its plan as a mandatory payment due. c) Implead the Applicant as party Respondent to Company Appeal (AT) (Insolvency) No. 1203 of 2024 being a necessary and proper party and allow the Applicant to file a detailed affidavit bringing forth certain additional facts and submissions; d. Pass any other further order as this Hon'ble Tribunal may deem fit and proper under the facts and circumstances of the instant case : " 23. We have already noted the submissions, the provisions of Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010, which contains the statutory obligation on the prom....
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....t refuse handover such maintenance to the association. 26. It is further relevant to notice that in the joint meeting held on 31.12.2024 between the association, YG Estates. YG Estates agreed to the handover maintenance to the association. Copy of the minutes of 31.12.2024 has been brought on record by association in its reply to I.A.799/2025, at page 145, which is to the following effect: "Ref No. SNAOA/101/2025 Date: 4.1.2025 Minutes of Meeting held on 31 December 2024 in the office of IRP on Hon'ble NCLAT court order dated 19-12-2024 in case no. 1203 of 2024 & I.A. No. 8083 of 2024 prayer-(i) regarding direct handing over to Supernova Apartment Owners Association (SNAOA) A Meeting of Supernova Apartment Owners Association (SNAOA) Noida, YG Estates Facility Management Pvt. Ltd (YGE), Plot No. 59, 3rd floor, Raina Perito, Sector-136, Noida, and IRP (Supertech Realtors Pvt. Ltd.) C-100 Sector-2, Noida held on Monday, 31st December 2024 at 12.00 PM in the office IRP in reference to Hon'ble NCLAT court order dated 19- 12-2024 in case no. 1203 of 2024 & I.A. No. 8083 regarding handover of maintenance to SNAOA. Following officials participated in t....