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2025 (12) TMI 112
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....wo appeals have been filed, challenging the common order dated 12.09.2025 passed by the adjudicating authority (National Company Law Tribunal, Court - V, Mumbai Bench) in I.A. No.5195/2024 & I.A. No.6034/2024 filed in C.P. (IB) No.284/MB/2024. By the impugned order, the above applications filed by the appellants, the corporate debtors, praying for dismissal of the C.P. IB 284/MB/2024 filed under Section 7 of the Insolvency & Bankruptcy Code, 2016 (hereinafter referred to as the 'Code' or the 'IBC'), by the Avenue 54 Welfare Association have been dismissed by the adjudicating authority, aggrieved by which order, these appeals have been filed. 2. Brief facts necessary to be noticed for deciding the appeal are: i. Section 7 application was filed by Avenue 54 welfare Association, a registered society of flat purchasers in the project known as "Avenue 54" at Santacruz West, Mumbai. ii. The members of the Avenue 54 Welfare Association who had purchased 98 flats in the project got a society registered of the flat buyers namely Avenue 54 Welfare Association. In the Section 7 application, the Sumer Buildcorp Private Limited as corporate debtor No. 1 and Sumer Radius Rea....
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....2019. Learned counsel for the appellant referring to Section 7 application submitted that in 'Form - I', the name of the financial creditor was mentioned as Avenue 54 Welfare Association, whereas, no financial debt is owed to the Avenue 54 Welfare Association by the corporate debtors and the application filed by Avenue 54 Welfare Association was not maintainable and deserves rejection. It is submitted that there was no authorisation by financial creditor in a class who are members of the Welfare Association. The resolution which is claimed dated 23.01.2024, authorising, Mr. Tarun Jain and Mr. Harshit Kakkad are authorisation in favour of the members of the core committee. It is not proved that the said resolution was passed by all members of the Association authorising the Welfare Association to institute Section 7 proceeding, Welfare Association being not competent to imitate proceeding in its name, application under Section 7 deserves to be rejected. Adjudicating authority relying on decisions of NCLT in 'Vipul Green Residents Welfare Association' Vs. 'Vipul Ltd.' in [IB 541(ND)/2019] by NCLT, New Delhi Bench and another judgement of the NCLT, New Delhi in 'Krrish Florence Estate....
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....isposal of Section 7 application. The defect, if any, was curable defect and opportunity ought to have been given to the respondent herein to file individual affidavit and authorisation to dispel the objection raised by the corporate debtor. 6. No other submissions have been pressed by the appellants. 7. We have considered the submissions of the counsel for the parties and perused the records. 8. The application under Section 7 has been filed by Avenue 54 Welfare Association, which claims to be registered society registered on 11.05.2022 under Society Registration Act by Assistant Registrar Society, Greater Mumbai region. 'Form - I' of the application under Section 7 filed by Avenue 54 Welfare Association is Annexure A - 2 to the appeal. It is relevant to notice Part I of the application which is as follows: "PART I PARTICULARS OF APPLICANT (PLEASE PROVIDE FOR EACH FINANCIAL CREDITOR MAKING THE APPLICATION) NAME OF FINANCIAL CREDITOR Avenue 54 Welfare Association DATE OF INCORPORATION OF FINANCIAL CREDITOR 11th May, 2022 IDENTIFICATION NUMBER OF FINANCIAL CREDITOR Registration No.923/2022 under the Societies Regis....
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....state project, whichever is less: Provided also that where an application for initiating the corporate insolvency resolution process against a corporate debtor has been filed by a financial creditor referred to in the first and second provisos and has not been admitted by the Adjudicating Authority before the commencement of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, such application shall be modified to comply with the requirements of the first or second proviso within thirty days of the commencement of the said Act, failing which the application shall be deemed to be withdrawn before its admission.] Explanation.--For the purposes of this sub-section, a default includes a default in respect of a financial debt owed not only to the applicant financial creditor but to any other financial creditor of the corporate debtor." 11. The above provision indicates that application under Section 7 can be filed by financial creditor, either by itself or jointly with other financial creditor or any other person on behalf of the financial creditor as has been notified by the Central Government. Central Government has issued notification dated 27.02.2019 in exe....
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.... been paid by the Home Buyers to the Promoters and these amounts have been utilized in the Project. The balance amounts are payable as per progress in the construction work of the project. The members of the Financial Creditor states that they are ready and willing to pay the balance amount of Rs. 595,71,00,626/- [Rupees Five Hundred Ninety Five Crores, Seventy One Lakhs, Six Hundred Twenty Six Only) as per the terms of the allotment letter. A list of the members of Financial Creditor alongwith details of their flat and consideration is annexed and marked Exhibit "F" The flat purchasers have made payment of amounts towards the respective flats from time to time between the period up to 2018. The first flat was purchased in January 2016 by the member of the Financial Creditor. The Financial Creditor craves leave to refer and rely on the Bank Statement of its members evincing payments made to the Promoter as and when necessary." 14. From the pleadings of Section 7 application, Part IV as noted above, it is clear that Welfare Association was registered as Society Registration Act which consists of 98 flat buyers and the dues of 98 flat buyers was the basis of initiating Section ....
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.... Society Registration No. Ultra Mile, 1, Golden Bungalow, Opp Bank of Baroda, Juhu Road, Santacruz West, Mumbai 400 054. CERTIFIED TRUE COPY OF THE RESOLUTION PASSED AT THE VIRTUAL MEETING OF THE CORE COMMITTEE MEMBERS OF THE AVENUE 54 WELFARE ASSOCIATION AT ON 23"' JANUARY 2024 "RESOLVED THAT Mr. Yogin Porecha, Mr. Rupen Bhatt, Mr. Tarun Jain, Mr. Kapil Bagla and Mr. Harish Kakkad, members of AVENUE 54 WELFARE ASSOCIATION, be and are hereby severally authorized for and on behalf of the Association to appoint. engage. and/or avail the services of any Advocates, Attorneys, Solicitors and/or Counsel. Firm of Lawyers or Solicitors lo act, appear. plead for and on behalf of the Association and to protect he rights and interests of the members and (i) for filing debts before the NeSL on behalf of the Association, (ii) filing Section 7 Petitions before the National Company Law Tribunal. Mumbai against promoters of Avenue 54 Project being Sumer Buildcorp Private Limited and Sumer Radius Realty Private. (iii) filing application to challenge the claims of Piramal Capital and Housing Finance in the ongoing IBC proceedings in respect of Radius Estates and Pr....
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....licant in the present company petition, which was objected by counsel for the corporate debtor and was not accepted by the Court. Reference has been made to the proceeding dated 17.06.2025 of the adjudicating authority, which order was recorded in I.A.6034/2024 and I.A.5195/2024 in C.P. (IB) 284/2024. Copy of the order dated 17.06.2025 is brought as Annexure R - 3 to the additional affidavit filed by the respondent in Comp. App. (AT) (Ins.) N0.1572/2025, which is as follows: "IA 6034/2024 and IA 5195/2024: - Heard, learned counsel for the Applicant as well as the Respondent in these 2 IAs. While re-joining, the learned counsel for the Respondent offered to tender the individual affidavits of the home buyers stating their identity, as also the fact that they individually have authorized the applicants in the present Company Petition. Senior Counsel Mr. Joshi, appearing for the Applicants opposed it, stating that these IAs were heard by the earlier constituted Bench and, thereafter, substantial hearing has happened before the present Bench including submissions of the counsels for the Applicants as also the counsel for the respondent. At this belated stage ....