TaxTMI 
TaxTMI 
2025 (11) TMI 683
X X X X Extracts X X X X
X X X X Extracts X X X X
...., Advocates for Respondent JUDGEMENT JUSTICE YOGESH KHANNA, MEMBER (JUDICIAL) This appeal is filed against an impugned order dated 04.12.2023 passed by the Learned Adjudicating Authority, NCLT, New Delhi in CP(IB) No. 646/2021 whereby the Ld. Adjudicating Authority had admitted an application, under Section 7 of IBC, filed by the allottees in relation to (a) Bhasin Infotech and Infrastructure Pvt Ltd and (b) Grand Venezia Commercial Towers Pvt Ltd. 2. It is the foremost submission of the learned counsel for the appellant, the two companies stated above, are both separate legal entities viz M/s Grand Venezia Commercial Towers Pvt Ltd and M/s Bhasin Infotech and Infrastructure Pvt. Ltd. and (a) allottees of both these companies have filed a single Company Petition under Section 7 of the Code and the allottees, if taken separately, of both the companies, they would not make out the threshold, as is required under Section 7 of the Code to file a company petition, but to overcome such disability, they have joined these two Corporate Debtor(s) together and have filed a single company petition under Section 7 of the Code, which per se is not maintainable and (b) there exists n....
X X X X Extracts X X X X
X X X X Extracts X X X X
....so made to an order dated 07.03.2025 passed by this Tribunal which records as under:- 18. Now we come to another issue raised before us. A writ petition No.26964/2024 is filed by an erstwhile Director of the CD against the State of UP and three others for quashing of a demand raised by the UPSIDC and the same is now listed on 10th March, 2025 for final arguments. We find the said writ petition furthers the cause of allottees as is noted in paras No.5 and 6 of this tribunal's order dated 7.12.2023 (supra), hence we direct the RP to accord his presence in the said writ petition, as a co-petitioner, in the peculiar circumstances as are explained and would act in accordance with law. 5. Further an order dated 04.04.2025 was also passed by this Tribunal which records as under: - Status Report has been filed on behalf of RP. Be also listed on the next date of hearing. RP to comply with the order dated 07.03.2025 in relation to Allahabad High Court. 6. Reference was also made to an order dated 04.08.2025 passed in WP(C) No. 26964/24 to say the said writ petition has been substantially argued but because of the change of roster the matter is lingering on. He then re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....being raised by the UPSIDC. Thus it was argued, the appellants had every intention to execute Tripartite Lease Deeds, but for the disputes pending with UPSIDC, they were unable to do so. 9. The learned counsel for the appellant also referred to affidavit(s), both dated 23.07.2024, filed in Company Appeals (AT)(Ins) No.1593 of 2023 and 1594/2023 to show the allottees who filed the company petition were much below the threshold as is provided in proviso to Section 7 of the IBC Code and the issues were rather got settled with most of such allottees/petitioners, even prior to this filing of their petition under Section 7 of the Code. 10. It was also the submission of learned counsel for the appellant admittedly the allottees of two groups companies were got clubbed together to bring them above the threshold of 100 allottees and this principle was wholly incorrect as some of the allottees, who settled prior to the petition, deliberately were made parties to the petition. He referred to an affidavit dated 23.07.2023 to press his argument. He argued the impugned order referred to the settlements post filing of the petition saying those cannot be looked into but utterly failed to con....
X X X X Extracts X X X X
X X X X Extracts X X X X
....amely "The Grand Venice" of the Corporate Debtors, M/s Grand Venezia Commercial Towers Private Limited (Corporate Debtor 1) and M/s Bhasin Infotech and Infrastructure Private Limited (Corporate Debtor 2) and the Corporate Debtors are engaged in the business of real estate activities which includes developing, buying, selling, renting managing and appraising real estate amongst others. Further, it is envisaged under Section 5(8)(f)(ii) of the Code that the definition of 'allottees' for the purpose of IBC, shall have same meaning as defined under Section 2(d) of the Real Estate (Regulation and Development) Act, 2016. 12. In the present case, the petition has been filed by 103 allottees. However, subsequently, settlement arose between certain allottees and the Corporate Debtor(s) and therefore, such allottees withdrew their names from the present petition. Further, it is the contention of the Corporate Debtor(s) that out of the total allottees, 56 allottees paid the principal amount in full, however, failed to pay the stamp duty. Further, the Corporate Debtor(s) contended that the principal amount is pending with respect to 30 allottees. However, it is pertinent to mention th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mpany acts in a prejudicial manner or oppresses any part of its members. It, inter alia, provided that no application could be made by any member, in the case of a company having a share capital unless the member has obtained consent, in writing, of not less than one hundred in number of the members of the company or not less than one-tenth in number of the members, whichever is less. There was also an alternate requirement, to which, resort could be made in regard to company, not having share capital. There was another mode of fulfilling the threshold requirement. In the facts of the said case, the number of the members of the company were 603. Sixty-five members consented to the application. The problem, however, arose as it was contended that 13 of the members who had consented, had, subsequent to the presentation of the application, withdrawn their consent. This Court went on to hold as follows: "5 xxx xxx xxx We have no hesitation in rejecting this contention. The validity of a petition must be judged on the facts as they were at the time of its presentation, and a petition which was valid when presented cannot, in the absence of a provision to that effect in the stat....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., in the present case, the Corporate Debtor(s) had contended that not only the project is completed but the Respondents have made every effort to urge the allottees to complete their payments and get the registration and possession of the units but the Applicants failed to take the possession of the units. However, on the perusal of the documents placed on record vide I.A. No. 2178 of 2023 in Annexure A5 (Page 62 to 81), it can be seen that the units which need to be handed over by the Corporate Debtor(s) to the Financial Creditors are still under construction and not complete till date. It is also observed that such pictures depicting the incomplete construction of units are not disputed by the Corporate Debtors. Additionally, it is stated by the UPSIDA vide RTI reply dated 24.03.2018 in para 7 that without completion certificate, the builder cannot offer possession of "any part and parcel of this project". However, in RTI reply dated 24.03.2018 enclosed as Annexure-RA/9 in the rejoinder filed by the petitioners, it has been made clear that the builder has not applied for final Completion Certificate and that till 24.03.2018, only a partial completion certificate had been issued. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ainable. 14. The aforesaid paras do show there were 103 allottees at the time of the filing of the petition, hence the threshold was met and though the submission of the appellants viz some of its allottees have since settled, but admittedly the appellants failed to file any documents on record to support such contention and hence such contention was rightly rejected. Qua the argument that a joint CIRP could not have been possible in the facts of the present matter; we may refer to paras 11 and 12 of the rejoinder filed on behalf of the appellants herein to the reply dated 27.07.2022, wherein the appellants themselves have admitted of both companies, being controlled by one single group of management. Paras 11 and 12 of the rejoinder are as under: - 11. That further in the case of Jintender Arora, RP, M/s Premia Projects Ltd Vs Tek Chand cited as Company Appeal (AT)(Ins) No.1069 of 2020 it was held as follows:- "if a Corporate Debtor has intricate financial relationship with another company which is controlled in an overwhelming manner by the same set of directors, as the corporate debtor and their businesses are inter- related, intertwined and interwoven, it s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....after referred to as the Commercial Plot)" 16. The payment receipt given to allottees with an endorsement of acknowledgement by both these Corporate Debtors is as under:- RECEIPT No. GVCTGPL/CT/Office/008 Dated: January 4, 2010 Customer Code Received with thanks from Mr Gautam Mullick R/o 1/327, Ground Floor, Janakpuri, New Delhi-110058 sum of Rs.1,00,000/- (Rupees One lac fifty thousand only) towards provisional registration for booked an area of approximately 664.00 square feet (super area) bearing unit No.1001 on Tenth Floor, subject to final confirmation of area in Grand Venezia Projecte at Greater Noida Uttar Pradesh vide Cheque/Demand Draft Pay Order/Cas as per the details given below:- S. No. Cheque/demand draft/pay order No. Cheque/demand draft/pay order date Drawn on bank Amount (in Rs.) 1 080580 January 8, 2010 HDFC Bank Ltd Plot No. 28 Block B, Community Centre, Janakpuri, New Delhi 1,50,000.00 Total Rs One lac fifty thousand only 1,50,000.00 For Bhasin Infotech and Infrastructure Pvt Ltd Sd/- Authorised Signatory 17. In addition to above, we have also noted the contents of all....
X X X X Extracts X X X X
X X X X Extracts X X X X
....td.' and developers have undertaken several responsibilities towards the allottees. The construction of Real Estate Project will not be achieved in event joint insolvency is not initiated against all the three Corporate Debtors who are Appellants before us, the allottees will put to severe loss and hardship. CIRP in the Real Estate Project has different contours and ramification. It is also on the record that at a time when 2nd Collaboration Agreement was entered between 'Anand Infoedge Pvt. Ltd.'and 'Mist Direct', 'Anand Infoedge Pvt. Ltd.' has 99.99% shareholding in 'Mist Direct'. All three companies who are impleaded as Respondents in Section 7 Application and Appellants before us are closely connected with the construction and implementation of the project. The developer who have issued allotment letter and executed Builder Buyer Agreement was acting on behalf of 'Anand Infoedge Pvt. Ltd.' who has given authority to 'Mist Direct'. 17. We need to look into some decided cases which have been cited by both the parties in support of their submissions. We may first notice Judgment in C.A.(AT) Ins. No. 155 of 2018, Mamatha Vs. AMB Infrabuild Pvt. Ltd. & Ors. The above case w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Section 7 will be maintainable against both of them jointly and not individually against one or other." 45. Learned Counsel for the Appellant has also contended that eight allottees have settled their matters hence they should be excluded from number of 100 which need to be fulfilled. Hon'ble Supreme Court has answered the said question as to what is the point of time when the threshold requirement has to be proved. In Manish Kumar itself it has been answered that requirement of threshold under proviso in Section 7(1) must be fulfilled as on the date of filing of the Application. The fact that eight allottees have settled the matter is thus inconsequential and eight allottees cannot be excluded in the counting of 100 allottees which are required to be fulfilled as threshold. The provision of Section 7(1) Second Proviso inserted by Act No. 1 of 2020 having been explained by the Hon'ble Supreme Court, the law is well settled that all applicants who have joined the Section 7 Application have not fulfilled the threshold individually nor claim of all the applicants individually has to be within time in event there is default of more than Rs. 1 Crore and default of Rs. 1 Crore o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....w of the above the undersigned concludes that at present, the Commercial Tower/Office Building integrated with the mall is only partially built and lacks basic safety measures such as Fire safety, lift services, adequate lighting, air conditioning, prober bathroom facilities, security etc. It is stated that no fir NOC, fire hydrants and no fire fighting equipment and no separate fire exit was found to be in existence during the inspection. The units situated on all floors require substantial amount of work to be done before giving possession to the allottees in a fit and proper state and by no stretch of imagination, immediate possession can be given to the allottees. 24. Thus neither the construction is complete till date nor the assured returns have been paid to the allottes since 2014. Annexure R-22 of the reply of respondent No.1 is a letter issued by appellants, stopping the assured returns as under: Dear Mr/Ms/Mrs Subject Office space in Grand Venice Project- Greater Noida It has been a great pleasure to have you as one of our valued clients who has booked office space/shop in our Grand Venice Project at Greater Noida. We are pleased to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed 15.05.2025 submitted by Mr. Justice Rajnish Bhatnagar (Retd.), categorically establish the construction of the project is grossly incomplete and in a deplorable condition. The IRP. upon physical inspection, recorded the units from the 3rd to 8th floors are mere bare-shell structures with raw concrete and debris scattered all around, with even basic elements such as doors missing. More significantly, it was found no construction whatsoever had taken place from the 9th to 15th floors, and a similar situation existed with respect to the so-called virtual office spaces and luxury retail units. It is further pertinent to note the Observer's Report dated 15.05.2025 independently corroborates these findings. The Report specifically noted the units on 3rd to 15th floors were filled with debris and had no proper entryway, and in several areas the ceilings were open with exposed electrical wiring. The Report further emphasized on the 9th to 15th floors, no units have been constructed at all. It was also confirmed vital infrastructural elements such as the installation of lifts, construction of staircases, and other basic safety and utility works remain incomplete, thereby rendering th....