TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 1223
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.... taking up both the appeals together and referring to them as "Appellants". The Appeal has been filed under Section 61 of the Insolvency and Bankruptcy Code, 2016 ('Code') against the Impugned Order dated 24.04.2024 for Comp. App. (AT) (Ins) No. 1169 of 2024 and 02.02.2024 for Comp. App. (AT) (Ins) No. 531 of 2024, passed by the National Company Law Tribunal, Division Bench, Court No. II, Mumbai ('Adjudicating Authority') in IA No. 4154 of 2023 and IA No. 3987 of 2023 in Company Petition (IB) No. 2517(MB) of 2018. Mr. Arun Kapoor, who is the Resolution Professional of Monarch Brookfields LLP, is the Respondent No. 1 herein. Planet Builders and Developers, who is the Successful Resolution Applicant, is the Respondent No. 2 herein. 2. The Appellants submitted that they entered into an Agreement for Sale in January 2014 with the Corporate Debtor for the purchase of Flat No. 1104 and Flat No. 1105 in the Arizona wing of the project developed by Monarch Brookfields LLP in Navi Mumbai, measuring 55.246 square meters plus a terrace area of 4.185 square meters on the 11th floor, inclusive of a 4-wheeler parking space. 3. The Corporate Debtor failed to deliver possession of the flat, pr....
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....ngoing CIRP and the necessity to submit a proof of claim under the Code and regulations, whereupon they filed Form CA electronically via email on 25.08.2023, with the Respondent No. 1. 7. The Appellants submitted that the Respondent No. 1, in its email response dated 28.08.2023, summarily rejected the claim on the grounds that the resolution plan had already been approved by the Committee of Creditors (CoC) and an application for its approval was pending before the Adjudicating Authority. The Appellant submitted that due to this rejection, the Appellants instituted IA 3987/2023 and IA 4154/2023 seeking, inter alia, directions to admit their claim, nullify the rejection order, incorporate the claims into the pending resolution plan. The Appellants submitted that in reply, the Respondent No. 1, through IA 4154/2023 and IA 3987/2023, filed an affidavit asserting that the claim was lodged post-CoC approval of the plan; that the public announcement had been adequately published in the aforementioned newspapers and on the Corporate Debtor's website; that the Information Memorandum (IM) prepared by the erstwhile Resolution Professional warranted no inclusion of the Appellant's cl....
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....of Regulation 6 of the CIRP Regulations, whereby the public announcement in Form A was not uploaded on the IBBI's official website, further compromising the transparency and accessibility essential to the insolvency framework. The Appellants further submitted that the Adjudicating Authority failed to appreciate the non-existence of any website for the Corporate Debtor, rendering the Respondent's assertion of uploading the announcement thereon not only misleading but patently false, as no evidence of such a domain was adduced, thereby undermining the integrity of the claim's invitation process. 11. The Appellants contended that the Adjudicating Authority did not recognize that the Appellants could not have reasonably anticipated or acquired knowledge of the CIRP initiation owing to the Respondent's lapses in adhering to the statutory modalities for public announcement under the Code and CIRP Regulations, which constituted a fundamental breach warranting condonation of delay. 12. The Appellants submitted that the Adjudicating Authority's observation imputing deemed knowledge to the Appellants and insisting on timely filing despite evident publication deficiencies wa....
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....ng a public announcement in Form A on 24.11.2019 under Regulation 6 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, which was uploaded on the IBBI website. The Respondent No.1 contended that, in compliance with Regulation 6 of the aforesaid Regulations, the public announcement was also published in one English newspaper (Financial Express) and one local newspaper (Mumbai Lakshadweep) on 24.11.2019, both having wide circulation in Mumbai, where the Corporate Debtor's registered office is located. 20. The Respondent No.1 submitted that, after verifying and collating claims, the erstwhile Resolution Professional constituted the CoC and conducted various meetings thereof. The Respondent No.1 further submitted that during the 13th CoC meeting held on 19.11.2021, the Resolution Plan submitted by Planet Builders and Developers was unanimously adopted by the CoC exercising its commercial wisdom, following which the Respondent No.1 filed I.A. No. 70/2022 before Adjudicating Authority for approval of the Resolution Plan. 21. The Respondent No.1 submitted that the Appellants filed their claims on 25.08.2023, more than two years after the CoC's ap....
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....ant's are not Financial Creditor as their names could not be found in the records of the Corporate Debtor and further, no payment proof was found to accept the Appellants as genuine Homebuyers. The Respondent No. 1 pleaded that in view of these facts, Puneet Kaur (Supra) is not applicable in the present case. 27. Concluding his argument, the Respondent No.1 requested this Appellate Tribunal to dismiss both appeals. 28. The Respondent No.2 submitted that, pursuant to the hearing on 23.07.2025, the Appellant stated he is agreeable to categorization under 'Category - C' of home buyers, noting that 'Category C' unit purchasers admittedly paid monies towards illegal units/constructions. However, the Appellants failed to demonstrate payment of any monies to the Corporate Debtor's account(s), as recorded in paragraph 9 of the Impugned Order. The Respondent No.2, who submitted that therefore, the Appellants cannot seek categorization under 'Category - C' of home buyers under the successful resolution plan. 29. The Respondent No.2 submitted that the Appellants has not challenged the Adjudicating Authority finding of no proof of payments to the Corporate Debtor....
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....ves. The Respondent No. 2 elaborated that and the Appellant, having initiated consumer litigation cannot claim that they were unaware of the likely CIRP, and their failure to file timely claims is unjustified. 35. The Respondent No.2 submitted that the Adjudicating Authority considered all issues raised by the Appellants, noting no plausible explanation for delay in filing claims before the Resolution Professional. It recorded that the Appellant annexed an undated, unsigned 'Receipt' at page 122 of the Appeal, showing no relation to the Corporate Debtor's bank account(s). The Respondent No.2 submitted that the Appellants filed claims on 24.08.2024, after 1357 days from CoC approval of the SRA's Resolution Plan, with no explanation for the delay. The Respondent No.2 submitted that the Appellant's claim was not in the Information Memorandum (IM) prepared by the Resolution Professional, as the Appellant failed to substantiate payments to the Corporate Debtor's account. This finding in the Impugned Order is unchallenged. 36. The Respondent No.2 submitted that the CoC unanimously approved the SRA's Resolution Plan in commercial wisdom; such wisdom cannot be....
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....morandum and the Resolution Plan should have considered their cases also. 43. We note that the Respondent No. 1/ Resolution Professional in its reply in the appeal has stated that: - "In this regard, it is submitted that the Respondent in its Reply to the subject Appeal, has asserted that the claims of the "homebuyers are bifurcated into three broad categories i.e. claims related to those flats that are in accordance with the revised sanction plan, claims related to those flats which had multiple bookings and claims related to those flats which are not authorized to be constructed as per the revised sanction plan dated 03.02.2012. The homebuyers falling in the third category, i.e. - claims related to those flats which were not authorised to be constructed as per the revised sanction plan dated 03.02.2012, are entitled to receive 25% of their admitted principal at the end of the plan i.e. T+730 days, the alleged subject flat of the Appellants falls in this category". (Emphasis supplied) 44. The Appellants pleaded that based on the submissions of Resolution Professional (noted above), they are entitled to receive 25% of their claims and hence, they should be granted this relief.....
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....t the Resolution Plan has since then been implemented. 49. We will examine the issues raised by the Appellants that the public announcement was deficient and therefore the CIRP itself attracted material irregularities. We note that the public announcements were made by the Respondent No. 1 in two newspapers, namely, Financial Express and Mumbai Lakshadweep, which was in accordance with the CIRP Regulations. We also observe that the Homebuyers/ allottees may be residing in different parts of India or even may be residing abroad, hence, it is not intended that public announcement, by way of newspaper publication, should be made in each and every city where Homebuyers are residing. This is not practical and conceived by the law. 50. We observe that once public announcement was made by the Respondent No. 1 as per stipulated guidelines like newspapers, IBBI website, website of Corporate Debtor, then this needs to be considered as sufficient and Appellants cannot claim any grievance on account of public announcement. Thus, on aspect of alleged deficiencies or irregularities in public announcement as pleaded by the Appellants, we do not find any merit. 51. It is the case of the Appella....
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....on of the Agreement without giving any details. We, therefore, do not find such alleged agreement as valid or legal agreement which could have established the case of the Appellants as Financial Creditors. 54. We also note that the submissions of the Respondent No. 1 that the Appellants did not bring all facts before the state consumer forum and the order was allegedly obtained fraudulently from the state consumer forum on 23.09.2019. We also take into consideration the pleadings of the Resolution Professional that since the CIRP was initiated on 27.09.2019, the Respondent No. 1 could not file the appeal against the order of state consumer forum. Be that as it may, the Appellants, as Homebuyers, need to have filed their claims along with proof of their claims before the Resolution Professional, which the Appellants failed to do as per the laid down procedures. 55. We reiterate that the Appellants could not explain the exact payments for the flats to the Corporate Debtor before the Adjudicating Authority as well as before this Appellate Tribunal. We also take into consideration that the same is not being reflected in the books of the Corporate Debtor and the record of the Corporat....